IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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Photographic 
.Sciences 
Corporation 


23  WIST  MAIN  STRIET 

WIBSTH.N.Y.  MSM 

(716)t73-4S03 


CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICIVIH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microraproductions  /  Institut  Canadian  da  microraproductions  historiquas 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 


□ 


D 


□ 


0 


Coloured  covers/ 
Couverture  de  couleur 


□    Covers  damaged/ 
Couverture  endommagie 

1—1    C 

I I  c 


Covers  restored  and/or  laminated/ 
Couverture  restaurie  et/ou  pelliculAe 


I      I    Cover  title  missing/ 


Le  titre  de  couverture  manque 


□   Coloured  maps/ 
Cartes  gAographiques  en  couleur 


Coloured  init  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


I      I   Coloured  plates  and/or  illustrations/ 


Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
ReiiA  avec  d'autre*  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  liure  serr6e  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intArieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajoutAes 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  Atait  possible,  ces  pages  n'ont 
pas  At6  filmies. 


L'institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibliographique.  qui  peuvent  modifier 
une  image  reproduce,  ou  qui  peuvent  exiger  une 
modification  dans  la  m6thode  norma'e  de  filmage 
sont  indiquAs  ci-dessous. 


r~~|   Coloured  pages/ 


D 

D 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagies 

Pages  restored  and/oi 

Pages  restaurtes  et/ou  pelliculAes 

Pages  discoloured,  stained  or  foxe< 
Pages  dAcoior^es.  tachet6es  ou  piquAes 

Pages  detached/ 
Pages  ditachAes 

Showthrough/ 
Transparence 

Quality  of  prir 

Qualiti  Inigale  de  I'impression 

Includes  supplementary  materii 
Comprend  du  materiel  supplbmentaire 


I — I  Pages  damaged/ 

I      I  Pages  restored  and/or  laminated/ 

I    1  Pages  discoloured,  stained  or  foxed/ 

r~~|  Pages  detached/ 

r~~}  Showthrough/ 

I      I  Quality  of  print  varies/ 

I      I  Includes  supplementary  material/ 


Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  fauillet  d'errata.  une  pelure. 
etc..  ont  M  fiimies  A  nouveau  de  fapon  d 
obtenir  la  meilleure  image  possible. 


1 

P 
o 
f 


b 
tl 

s 
o 
fi 

s 


T 
si 

Tl 
w 


dk 
ei 
b< 

ril 
re 


Additional  coniments:/ 
Commentaires  supplAmentaires; 


VarkMii  pagingt. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmA  au  taux  de  rMuction  indiquA  ci-dessous. 


10X 

14X 

18X 

22X 

26X 

30X 

y 

H 

12X 


16X 


20X 


24X 


28X 


32X 


The  copy  filmed  hor^  ha*  been  reproduced  thanks 
to  the  generosity  of: 

Univiraity  of  Saslcatchawan 
Sailutoon  * 

The  images  appearing  here  are  the  best  quaiity 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  -^  (meaning  "CON- 
TINUED"), or  the  symbol  y  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  fiiined  at 
dk  rerent  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  fUmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


L'exemplaire  film*  fut  reprcduit  grAce  i  la 
gAnArositA  de: 

Univtrtity  of  SaikstclMwin 
Saikstoon 

Les  images  suivantes  ont  «tA  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  le  condition  et 
de  la  nettetA  de  I'exemplaiie  film«,  et  en 
conformity  avac  les  conditions  du  contrat  de 
filmage. 

Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprim«e  sont  fiimAs  en  commenpant 
par  le  premier  plat  et  an  terminant  soit  par  la 
dernlAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'lllustration,  soit  par  le  second 
plat,  salon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmto  en  commen9ant  par  la 
premiAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernlAre  page  qui  comporte  une  telle 
empreinte. 

Un  des  symboles  suivants  apparaltra  sur  la 
dernlAre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  -^  signifie  "A  SUIVRE",  le 
symbols  V  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
filmte  A  des  taux  de  reduction  diffirents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clich«,  11  est  film«  i  partir 
de  Tangle  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas.  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

UiminXi;  SKA  CLAIMS  Od.MMISSlOX 


AiJ(;i)MK\'r 


i>N  iiKiiAi.r  or 


(JIM^A^^    innTAlN 


Cfl..^"  ' 


M"'f 


4 

I 


I 


TAIiLE   OV  CONTENTS. 


lUTnOhfCTOUV 3 

Assertion  of  Jurisdiction  hy  I'nitt'il  States 3 

Fir'^t  .S<'i/iir.'s,  I SSIJ 3 

Unitcil  Stall's  Sl.itiitps 3 

Iiiti'rfcri'ncc  ntlii-r  than  Sci/urc,  1880 4 

Heport  of  Sc-iziti;;  <  >llifrr 4 

J)i|iloiMalic  (.'<irr«'^|i(iiiil«'iiiT      5 

Ordt-is  for  (lisi'diitiniiaru't'  of  proceedings  ami   release  of 

vessels  ant)  persoin .       7 

Assurance  aj{ainst  further  Seizure  asked 7 

The  Seizures  of  18S7    8 

No  assurance  was  iin]ilic>(l 8 

IVotcsis  ajfainst  renowed  Hoi/.ures 9 

Coiidenination  of  Vessels 9 

Seizure  discontinued  in  1888 9 

The  Seizures  of    188',> 9 

The  "  Rithlindnr"  Seizure  in  Neah  Hay,  1800 10 

Protests  a^'ainst  continued  Seizures 10 

Shiftin;.'  |iosilions  of  l'iiite<l  States 10 

The  inotliia  rirenili  of   18!tl 10 

The  Treaty  of  Art)iiration 10 

Th.'  morlii.'i  riirniU  of    1  ."«.»2 1 1 

Tlie  yueslions  suliiiiitled  to  Arbitrators 11 

Ignited  States'  t'laiui  ne^;atived    1 1 

The    KiiidinKs   of   Fact 12 

Tiio  '■  Winnifred  "  Seizure 13 

Th(!  "  lleariclta"  Seizure 13 

Tiio  "  Oscar  and  llattio  "  Seizure 13 

Tim  "  Siywiird  "  Costs 13 

The  "  Wanderer"  Case 13 

Tiie  "  Hlack  Diamond  "  Case,  1886 13 

(ireat  Britain's  Claim 13 

TlIK  Sropi:  OK  TIIK  CoWUNTION It 

Kkkkct  or  Till-:  Pahis  Awaud 19 

MkasL'HK  ok  I  »AMA<iK ,     20 

Loss  OK  CATfii 25 

Intkhkst 36 

IsOuKAT  Huitain'.s  Ci.aim  afki;(;ti;i)  iiy  Citizkns  of  tiik  United 

Statks  iiavini;  an  Istkukst  in  aw  of  tiik  Vksskls 38 

Ekfect  of  Domicii  f.  on  NArioNAi.rrv 47 

Claims  fiiKsF.Nir.i)  on  Accoint  of  Pkusonai,  llAitiisiiii'  svf- 

KKIIKIl   in     I'lIF,  t'uKWS  OF  TIIK  SlI/KI)    Vlissl'.I.S 56 

TiiF.   CiiAiiA<  rKU    and   i;\ri;NT  of  tiik    Skai.ino    tiuoiNDs  in 

liKiiitiNo  Ska r»7 

Tiik  Diuation  of  tiik  Skai.inc;  Skason  in  UKiiiiiNii  Sea C7 

Taljles  sliowiiiK  ^essels  sealinj;  and  loiij^tii  of   Hehring  Sea 

voyage 7") 

11  S — A 


(/^»^^ 


u 


TAULK  OP  C0NTKST8. 


MrTHOI.  FOIt  f'oMPlTINU  TIIK  KSTIM  ATKI)  C'ATcri 

Valir  ok  »K\h  Skins 

SpkCIAI,  Co.M,ITI..N«  AFKKrTINd  VaI.I'K  ok  TIIK  VESSELS. 

Co.v.MSE  Statement  ok  Kacth  uelatinc.  to  each  Claim. 
Tho  "  Caioloiin,"  t'l-iiiii  No.  1 

Tlio  "  Thornton,"  Cliiiin  \o.  2 

Tlio  "  ( liiwar  I,"  Claim  No.  ;t ' . 

Tlip  "  Kavoiiriti>,"  Claiiii   No.  4 


Paok. 
79 
H3 
1*6 
»9 
89 
97 
103 
106 


rii.i  "  l!la.-k  Diamond,"  Claim  No.  .0 ,qj, 

TIh-  "  W.   I'.  .Say  wan],  ■   Claim  No.  6 ,,[  ] 

The  "  Anna  |{,.(;k,"  t'laiiri  No.  7 

Thc  "  Allivtl  Adams,"  ( 'jaim  No.  8 J  jjj 

Tho  "(inuv  •■  anil  "  Dolphin,"  Claiiiw  N,,,.  'J  and  10.  H 

The  "  Ada,"  Claim  No.  11 

Tho  "  Triumph, "  Claim  No.  12 

Thi'  ".luanita,"  Claim  No.  1.'} 

Tho  "  I'atlilindcr,"  Claim  No.  14 ......'. 

The  "  HIack  Kiamond, "  Claim  No,  10 

Tho  "  Lily,"  Claim  No.  IG   ][ 

The  "  .Minnif,  '  (.'laim  No.  17 

Tho  "  Triumph,"  Claim  No.  l,v 

The  "  Ariel,"  Claim  No.  I'J 

Tho  "  Kato,"  Claim  No.  20 

Tho  •'  Path(ind..r,"  Claim  No.  21 

The  "  ll.-nrictla,"  Claim  No.  22 

Tho  "Osoir  and  llattic,"  Claim  No.  2.'t 

Till-  "  Winnit'rcd,"  Claim  No.  2i 

The  "  Wanderer,"  Claim  No.  2") 

The  Csts  in  tho  "Sayward  "  Case,  Claim  No.  20.  .    ..[  1^4 

Heeapitulation 

CoNCI.L-.sl()\ 


10 
112 
0 
9 
124 
I.JO 
l.'J.J 
1.3.-) 

i;{7 

140 
142 
146 
149 
l.-)2 
l.')4 
16(> 

lor, 

172 
181 


1H7 
188 


AXM-.xr.s. 


Annex  1.^  The  »«»/„.   rnr»-/;  of  1891  ,on 

do      2.-The  Tr,.aty   ,f   1892 [',,['[             j^^ 

do      -i.— Tho  inodim  vU-enrli  oi   189*>                              .q- 

do      4.-The  Pari.s  Awir.l Jl 

do      f)._The  Cluim.s  Convention .,qJ 

do  r,._The  Can.a.lian  Aet  of  Parliament,  1896  ....  -"os 

do  7.— The  United  States  Act  of  Congress,  1896 ...  .  209 


I 


KEY  :i^O  IlEFEKENCEy. 


In  this  Argument  the  following  abbreviations  havo  been 
adopted  in  the  marginal  references  : — 

American  reprint  of  the  proceedings  at  Paris. 
Record  of  evidence  taken  at  Victoria. 


U.S.K.  (.r  r.S. 
H. 


S,  Kx.  Oik;.,  Nil 
KKl. 


I,.K. 


Executive  document  of  the  United  States  Senate' 
No.  106,  50th  Congress,  2nd  Session. 

English  Law  Reports. 

I'.K.  cif  til.' I  .s.    l>aper8  relating  to  the  Foreign  relations  of  the 
United  States,  Vol.  4,  for  years  1872-1878. 

<iin.  Aw.  Vui.  4.  Papers  relating  to  the  Foreign  relations  of  the 
United  States,  Vol.  4,  for  years  1872-1873. 


I  I'.akrX.l'. 
Stnti'  I'aiMTs. 


Peake  Nisi  Prius  Reports  (English.) 
English  State  Papers. 


The  ArKimi.n*  iit  A.  collection  of  forcnsic  discussion  before  the 
Geneva  tribunal,  published  by  authority  of  the 
United  States  Government  in  1 8  73. 


Opiiiiiiii.H  (if  At- 
toriicyH  (it'iicral. 


Ap.  B. 


A  collection  of  the  official  opinions  of  the  Attor- 
neys General  of  the  United  States,  pablished 
by  authority  of  Congress  in  1868. 

Appendix  B.  to  the  Record  of  Proceedings  at 
Victoria,  B.  C. 


i 


|{i:ill{|.N(J  SKA  CLAIMS  COMMISSION 


\k(,r\ii  \i  o\  iiiiiM  I  oi-  (.Ki  \  I   i!RH  \i\ 


INTKODUCTOIIY 


Ah  a  proiianitorv  Hfop  to  presoiitiiij,'  tlio  taso  of  llor 
IJrifiinnic  Mujoaty,  it  it*  pro|io«i'»l  to  rofer  to  tlio  main  thets 
loadiiij;  up  to  the  present  inciuiry. 

I'ntil  tlie  year  18S((,  tlic  United  States  govoniniont,  by  iv 
no  positive  act  Bought  Ui  cxemBo,  any  oxclusivo  Juriadiction  «:, 
over  the  waters  of  Jk'hring  Sea  beyond  tbo  usual  territorial 
limit,  nor  did  tbey  by  any  active  interference  intimate  to  Great 
Hritain  or  to  other  foreign  powers,  their  intention  to  claim 
special  or  exciusivo  authority  to  prevent  the  capture  of  fur 
10  seals  in  Hebring  Sea,  outside  of  such  limit. 

In  that  year,  under  inntructions  given  by  the  United 
States  government,  dated  April  'Jl,  IHStl,  to  prevent  Healing  in 
ndiiiug  Sea,  three  hritisb  vessels  the  *' Camlena,"  "Onward,'' 
and  '•'rii(<rntoir  were  arrested  i>y  a  United  States  revenue 
cutter  and  taken  to  a  I'liited  States  port  in  Alaska  and  stibsc- 
puiitly  libelled  upon  the  charge  that  they  were: 

"  Found  engaged  in  killing  fur  seals  within  the  limit  of  Alaska 
territory  and  in  the  waters  thereof,  in  violation  of  Sccti(m  I'.tbti 
of  the  Revised  Statutes  of  the    United  States."  which  section 

■JO  reads  as  follows: — 

"Sfction  1'.>5G.  No  person  shall  kill  any  otter,  mink,  H 
marten,  sable,  or  fur  seal,  or  other  fur-bearing  animal,  within 
the  limits  of  Alaska  territory,  or  in  the  waters  thereof;  and 
every  person  guilty  thereof  sliall,  for  each  ottence,  lie  tinetl  not 
less  than  S200  nor  more  than  81,00(1,  or  imprisoned  not  more 
than  six  months,  or  both  ;  and  all  vessels,  their  tackle,  apparel, 
furniture,  and  cargo,  found  engaged  in  vii)lation  of  this  section 
shall  be  forfeited;  hut  the  Secretary  of  the  Treasury  shall 
have    power  to   authorize  the  killing  of  such  mink,  marten, 

•"-0  sable  or  other  fur-bearing  animal,  except  fur  seals,  under  such 
regulations  as  he  may  prescribe;  audit  shall  be  the  duty  of 
the  Secretary  to  prevent  the  killing  of  any  fur  seal,  and  to 
provide  for  the  execution  of  the  provisions  ot  this  section  until 
it  is  otherwise  provided  by  law  ;  nor  shall  he  grant  any  special 
privileges  under  tins  section." 

Tlie.-e  vessels  were  all  condemnetl,  and  their  masters  and 
mates  lined  and  imprisoned. 


S.    li,.    ^..l 
fin^i    <,l  ;ini| 


I'.'J. 


INTRODl'CTOBV. 


In  addition  totlioxc  Hei/.uroB  two  ollior  ItritiKli  hcIiodiutk  tho 
"  l''uv(irit(! "  ami  '  BlaiU  Diiiiiioini  "  wcro  warned  i>_v  tlic  Uiiitod 
Btato«  uuthoriticH  ?u)t  to  iiurniiftliccaptiiro  itt  hcmiIk  in  lU-liring 
Sou  und  tiioir  voyages  were  thori'liy  l>rolten  up. 

Tlio  caid  8»'i/.uroH  were  nm<.'"  in  purHuan ,0  of  oiiiorn  irtsiicd 
from  till'  United  Sffttc«TrfaHnr\  l>i|iurtnieiu  totliueomnianding 
ylRcefH  of  tlieir  roveiuio  eiitters  >!v?ta;!":l  lorxerviee  in  Koliring 
Sen  in  tlie  spring  of  tlio  year  I88tj,  part  of  wliicli  iriHtructionH 
were  as  follows  : — 

"To  t'liforco  tho   law  eontained    in    the   proviBioim  of  wpc-  10 
tion  1  !*">♦')  of  the  U.S.  U.S.  and  tor^i'izeall  vesKeln  and  arrest  and 
deliver  to  tho  jiroper  niithoritien  any  or  all  persons  whom  you 
may  detect  violating  the  law  referred  to." 

It  now  appears  that  information  as  to  the  fact  of  the  seizu- 
res was  received  Ity  tlie  Secretary  of  the  Treasury  at  Wn»<hington 
by  telegraph  on  tho  IHtli  .August,  18Ht!,  from  the  special  Trea- 
sury Agent  at  San  Francisco,  which  was  followed  hya  written 
rejiort  confirming  the  fact  of  the  seizure  and  expressing  the 
hope  that  no  efforts  would  he  spareil  to  convict  such  inemhers 
of  tho  crews  of  such  vessels  us  had  been  taken  prisoners  by  20 
the  commanders  of  tho  revenue  cutter. 

On  tho  3rd  September,  1880,  tiie  seizing  o<w  •  i.  wrote 
from  Sitka,  Alaska,  to  tho  Secretary  of  tho  Treasury  at 
WnBhington  : — 

"  Upon  arriving  hero  I  reported  my  seizures  to  tho 
United  States  District  Attorney,  who  had  boon  advised  in 
advance  by  the  arrival  of  the  Bcluioner  "  San  Diego,"  on  August 
23rd,  and  laid  informations  against  the  nm.'^tcrs  an<l  mates  of 
the  seized  vessels  for  violations  of  Section  ]9o6  Kevised 
Statutes,  whereupon  they  were  removed  from  tho  "  Corwiu"  and  80 
taken  in  custody  by  the  United  States  Marshal. 

"  All  were  arraignetl  at  a  special  session  of  the  United 
States  District  Court  of  Alaska,  Judge  Lafayette  Dawson,  and 
the  masters  and  mates  of  the  Hritish  tiihconcr  "Tliornton"  and 
American  schooner  "  San  Diego"  were  convicted,  tho  former 
by  a  jury,  tho  latter  b}'  the  court,  und  sentenced  to  fine  and 
imprisonment.  The  other  two  criminal  trials — of  the  "  Onward  " 
and  "Uarolena"  jmrties  -  will  come  on  us  soon  as  a  new  jury 
can  be  obtained.  The  admiralty  cases  I  have  not  fully  decided 
how  to  proceed  with.  There  may  be  a  doubt  sis  to  the  juris-  40 
diction  of  the  Alaska  court  in  their  regard,  and  I  will  endea- 
vour to  settle  it  before  proceeding  at  all." 

On  the  22nd  Septoinber,  188tl,  the  same  seizing  officer  wrote 
to  the  Secretary  of  the  Treasury  at  Washington  from  Astoria, 
Oregon,  as  follows  : — 

"  I  would  respectfully  report  the  arrival  here  on  the  22nd  inst. 
of  the  revenue  steamer  "Corwin"  under  my  command  from 
Sitka,  September  10th,  via  Nanaimo,  Hritish  Columbia,  Sejit- 
ember  17th,  Port  Townsend.  W.T.,  the  18th,  and  Seattle, 
W.T.,  tho  20th.  50 

"  Referring  to  my  letter  of  the  3rd  instant,  from  Sitka,  I 
would  state,  in  cDntinuation,  that  I  remained  at  Sitka  in  con- 
tiiMious  uttenilance  at  court  up  to  the  date  of  my  departure. 
The  nuistcrs  aiu'  mates  of  the  seized  sealers  were  all  criminally 


'NTUoni'crouY. 


50 


convicfiMl  ii'ul.xfiitoiitfil  ti»  viiriiniH  tcriim  (iFinipri^oimicnt  luiil 
f'moH."' 

Ai'i'Mifiitly  tniiisiiiitfi'il  willi  iIk!  hist  moiitioiii'd  lottcr  wore 
uxtnutrt  rnnii  llif  loir  Dl'tlic  Hfiziiiu  (Mittcr  cxti'iulin^  tVoin  tlio 
iHt  Aiimmt  to  tlu'  lOtli  iliiy  of  Sfptt'iiilur.  IHSO,  fr\y\ug  tlif 
pri'iisc  locution  l>v  longitmlf  iiihI  lii'itmU)  wlicro  llic  Hoiziires 
liitd  iii'i'ti  iiimlo,  the  lull  I'iniiiiinfaiicus  of  tlic  Hci/.uron,  the 
iiimu's  ot'llic  iiiiistiTs  iititl  mates  iirroHted,  uiitl  viimntTutiii^  tlie 
variolic  urficii'i*  taken. 

10      On  till   -J"!!!  St'|iti'inlior,    IHSfl,  tin-  IJiitish   AmbasHador  at  H. '>i. 
Wasliiiigtoii  addrcj^HC'l  a  note   to  tlio   United  States  Secretary 
of  State,  urtkiiiif  to  In-  l'iirnin)i'"l   with  any  particnlar«  whie!i 
the  United  States  jfoverninciit  had  relative  to  the  soizuros. 

This  letter  reniaininir  iiiianHWorod,  on  t)io  'Jlst  October, 
IH8(J,  tlie  Hrifir'h  Ainhii-isador  wrote  to  the  United  States 
Secretary  n\'  States,  that  lie  was  without  reply  to  his  loiter  of 
the  27th  s. ;  'niher,  and  that  ho  was  instructed  by  his  Qovern- 
nieiit  to  pro'c  t  atrninst  the  seizures  and  to  reserve  all  rights 
to  cDinpeii  at.on. 

20  O  J  14thauy  of  Xnvomber,  1886,  the  British  Anib«nHador 
delivered  at  the  olHco  of  the  Secretary  of  State,  WashingttHi,  a 
copy  of  the  ii.,[iortant  letter  hearing  date  30th  October,  1886,  li.  p. :, 
from  the  Hiitish  Foreign  Minister.  This  letter  contained  an 
accurate  report  of  the  proceedings  against  the  vessels  whidi  had  i'.  h 
been  condenineil  at  Sitka  on  tiie  'iOth  August,  together  with 
depositions olOtlicers  and  luiii  engaged  upon  the  vessels  seized 
by  the  Unitetl  States  cutter  on  the  l.st  August. 

On  the  12th  November,  1886,  the  United  States  Secretary 
of  State  wrote  to  the  British  Ambassador  : 

:J0  "  The  delay  in  my  reply  to  your  letters  of  September  27,  u.  ■■7. 
and  October  21,  asking  for  the  information  in  my  possession 
concerning  the  seizure  liy  the  United  States  revenue-cutter 
Conciii,  in  the  Behring  Sea,  of  British  vessels,  for  an  alleged 
violation  of  the  laws  of  the  United  States  in  relation  to  the 
Alaskan  seal  lishenes,  has  been  caused  by  my  waiting  to  receive 
from  the  Treasury  Department  the  information  you  desired. 
I  tender  the  fact  in  apology  for  the  delay  and  as  the  reascm 
lor  my  silence,  and  repeating  what  I  said  verbally  to  you  in 
our  conversation  this  morning,   I   am  still   waiting  full  and 

40  authentic  reports  of  the  judicial  trial  and  judgment  in  the  cases 
of  the  seizures  referred  to. 

"  My  ajiplication  to  my  colleague,  the  Attorney  General,  to 
procure  an  authentic  report  of  these  proceedings  was  promptly 
made,  anu  the  delay  in  furnishing  the  report  <loubtle88  has 
arisen  from  the  remotent'ss  of  the  place  of  trial. 

"  So  soon  as  1  am  enabled  I  will  convey  to  you  the  facts  as 
ascertained  in  the  trial  and  the  rulings  of  law  as  applio<l  by  the 
court. 

"  I  take  leave  also  to  acknowledge  your  communication  of 

,')0  the  2l9i  of  October,  informing  me  that  you  had  been  instructed 
by  the  Karl  of  Iddesleigh,  Her  Majesty's  Principal  Secretary  of 
State  for  Foreign  Atiiiirs,  to  protest  against  the  seizure  of  the 
vessels  above  referred  to,  and  to  reserve  all  rights  of  compen- 
sation.    All  of  which  shall  receive  respectful  consideration." 


V.,1.  II, 


6 


INTRODUCTORY. 


n.  .".s.  I..  >i. 


H.  iv.i.  I,  .-ill. 


K.  -.'1. 


1!   i'«.  I. 


li  r>i. 


It    111.  I.    Kl 


K.  liiV 


U.  M 


Oil  tlu>  0th  .Tnmiarv,  1S87,  the  British  Ainhassiulor  wrot»>  to 
the  Unitoil  Stati'rt  Scorotaiy  of  State,  referring  to  liis  prior 
letters,  an<l  addiiij; : — 

'■  ITiiilcr  theco  lirciinirttaiioen.  Her  Majesty's  Government  do 
not  hi'silati'  to  exjirfss  their  coik-.tu  ai  not  liaviiig  roi'oiveil  any 
rejily  to  their  reiirosenlalioiis,  nor  do  llu\v  vjsh  to  I'onci'al  the 
grave  natur*'  wliieh  tlie  ease  has  thus  asstinietl  and  to  wiiieh 
I  am  now  instnieted  to  call  your  immediate  and  most  serious 
attention." 

On  tlie  T2th  .lannary,  1887,  tlie  Uidted  States  Secretary  of  10 
State  wrote  to  tiu'  I'ritish  And)assa(h>r: — 

"  From  week  to  weidc  I  luive  been  awaiting  tlie  arrival  tif 
tlie  impers,  and  today  at  my  reijuest,  the  Attorney  (Jeneral 
lias  telegrajilied  to  I'ortiand,  Oregon,  the  nearest  telegniph 
station  to  Sitka  in  Alaska,  in  order  to  expedite  the  I'urni.shing 
ol' the  desired  papiTs  "'*  #  *  *         #  *  * 

*         *  *  *     "  The  distance  of  the  vessels  tVoni 

any  land  or  the  circnmstaiu'es  attendant  upon  their  seizure  are 
unknown  to  me  save  liy  the  statements  in  your  last  note,  and 
it  is  essential    that  such  I'aets  should   he  devoid   of  all    iincer- 20 
taiiity." 

On  the  1st  Kehruary,  188/,  the  Mritish  Amhassa(h>r  wrote 
to  the  I'liited  States  Secretary  of  Slate,  inipiiring  whether  the 
intormalion  asked  for  had  heen  received. 

On  the  3ril  Kehruary,  1887,  the  United  States  Secretary  of 
State  replied  • — 

"  1  am  informed  that  the  documents  in  (juestioii  had   left 
Sitka    on    the    2t!tli    ot    .ramiary,    and  may    he    expected   to 
arrive  at    Port    Townsend,  in    Washington    Territory,  ahout 
the  7th  instant,  so  that  the  papers  in  the  usual  course  of  mail  ,S0 
should  ho  received  hy  me  within  a  fortnight.' 

On  the  4th  April,  1887,  the  British  Amhassndor  again 
impiireil  from  the  I'nited  States  Secretary  of  Stale  as  to  whe- 
ther the  documents  had  lieeii  received. 

On  the  12th  April,  18s7,  the  I'liited  States  Secretary  of 
State  wrote  to  the  British  Andiassador  that  *  *  *  "the 
reeoi<ls  of  the  judicial  proceedings  in  the  cases  in  the  District 
Court  ill  Alaska  referred  to  wutc  only  reieived  at  this  Depart- 
nnmt  on  the  Saturday  last  and  are  now  under  examination; 
*  *  *"  and  in  this  letter  the  United  States  Secretary  of  40 
State  proceeds  to  refer  for  the  first  time  to  sections  l!t5ti  to  llt71 
ot   the  Revised  Statutes  of  the  Uniteil  States. 

On  the  8th  duly,  18s7,  the  British  Ambassador  reijuostod 
copies  of  the  records  of  the  proceedings  against  the  seized 
schooners,  and  on  the  11th  July,  the  Unite<l  States  Secretary 
of  State  furnished  to  the  British  Amhassador  jirinted  copies 
of  the  judicial  proceedings  in  the  United  States  District  Coirt 
for  the  District  of  Alaska  against  the  said  vessels. 

This  corrcBpondence  shows  that  although  tlu'  seizures  occur- 
red on  the  1st  and  l-^nd  August,  188(1,  and  inform, it  ion  respect- 50 
ing  the  same  was  received  hy  the  I'nited  States  Secretary  of 
Stale  on  thi'  iMh  of  the  same  month,  and  a  recjucst  was  ma<le 
tor  particulars  th-'reolhy  the  British  (iovernmem  on  the  27th 
Septemher,  no  intimation  as  to  the  cause  of  seizure  or  any  par- 


7 


I,.  .Ml. 


,  r.  s.  I,  :i:t. 


INTRODUCTOnV.  7 

tieulnrH  rolaling  theroto  coiiltl  bo  olitaiiifd  from  tlio  lTiiitc<l 
States  (iovorimioiit  until  the  l"2th  April,  1887,  and  not  lioforo 
the  lltli  July,  1887  did  that  GovornnH'nt  communicuto  the 
precise  nature  of  tlie  ])roeecdingB. 

Pending  tho  deciHioii  of  t!ie  United  States  Goveriuuont  as  to 
tlic  action  they  would  take  upon  the  protest  made  hy  the 
British  (lovornment  against  the  seizures,  and  owing  to  the 
importance  of  the  (piestions  arising  therefrom,  the  following 

took  [)lace. 
10      On  the  7th   of  December,   1880,  the   BritiMh    And)asHabor 
wrote  to  the  United  Stales  Secretary  of  State : — 

*  *  "  I  have  the  lionour  to  slate  that  vessels  are  now  as 
usual  e(piipping  in  nritish  C'olumbia  for  lishing  in  that  sea. 

"The  Canadian  Government,  theretore,  in  the  absence  of 
information  are  desirous  of  ascertaining  whether  such  vessels 
lishing  in  the  open  sea  and  beyond  the  territorial  waters  of 
Alaska  would  be  exposed  tosei/ure,  and  Her  Majesty 'stilovern- 
nientatlhe  same  time  would  be  glad  if  some  assurance  would 
b(!  given  that  pendinu'  the  settlcnu>nt  of  the  (|ueHtion  no  svich 
20  seizures  of  Uritish  vessels  will  be  made  in  Behring  Sea." 

On  the  26th  Jani;ary,  1887,  l!ie  United  States  Government 
being  in  possession  of  all  the  facts  caused  the  following  telegram 
to  be  sent  to  tho  .ludge  and  District  Attorney  at  Sitka  : — 

"  I  am  directed  by  tho  Pre8i<lent  to  instruct  you  to  discon- 
timic  any  further  jiroceedings  in  tlie  matter  of  the  seizure  of  ' 
the  i?ritish  vessels  "  Carolena,"  "  Onward  "  and  "  'i'iiornton," 
and  discharge  all  veesels  now  held  under  sucli  seizure  and 
release  all  persons  that  nuiy  bo  uiuler  arrest  in  comiection 
therewith. 

30      And  on  tlie  3rd  day  of  February,  1887,  the   United  States 
Secretary  of  State  wrote  the  British  Anibassatlor  : — 

"  Tn  this  connection  1  take  occasion  to  inform  you  that  with- 
out conclusion  at  this  time  of  any  (piestions  which  may  be  found 
to  be  involved  in  these  cases  of  soizuri',  orders  have  been 
issued  by  the  President's  direction  for  the  discontiiiuance  of 
nil  pending  proi'cedings,  the  discharge  of  the  vessels  referred 
to,  and  the  release  of  all  persons  under  arrest  in  connection 
therewith.'' 

On  April  4tli,  18^7,the  Hritish  Ambassador  wroteto  United 
40  States  Secretary  of  State  : — 

"  In  view  of  the  approaching  lishing  season  in  Mehring  Sea 
and  the  lilting  out  of  vessels  lor  lishing  operations  in  those 
waters,  Her  Majesty's  (Jovernment  have  re(|uestcd  metointpiire 
whether  the  owners  of  such  vessels  may  rely  on  being  unmol- 
ested by  the  cruisers  of  the  United  States  when  not  near 
land."        ***  *##### 

On  April  12th,  18S7,  tho  United  States  Secretary  of  State 
wrote  to  the  Uritish  Ambassador  : — 

*  *        "The   ipiestion    of    instructions    to   Government '^  "'.i'  ^i'- 
50  vessels  in  regard  to  preventing  lh(>  imliscriminate  killing  of 

fur  seals  is  now  being  considered,  and  I  will  inform  you  at  tho 
earliest  day  possible  what  has  been  decided,  so  that  Mritish 
and  other  vessels  visiting  the  waters  in  (piestion  can  govern 
thcmsehes  accordingly.' 

Such  instructions  were  considered  and  determined  upon  by 
the  United  States  Government  and  communicated  by  letters 


i:.  III.  I,. 


K.  Ill 


I ' ,  S.  S,  lIKt ,' 


T 


8 


INTRODUCTORY. 


of  May  10th  and  May  28tli,  1887,  to  fho  Coiiimiiiiders  of  the 
Uiiitetl  Status  rovemio  outtorri  ;  hut  no  inforiiiiitioii  resiieetiiig 
them  was  ever  convoyed  to  the  British  authorities. 

These  instructions  were,  suhstantially,  the  same  as  those  of 
1886. 

Without  either  warning  or  notice  the  United  States  Govern- 
ment proceeded,  in  the  months  of  .Inly  and  August,  1887,  to 
seize  a  number  of  British  vessels  which  were  engiiged  in  sealing 
operations  in  BehringSea ;  these  vessels  were  the  "  W.  P.  Say- 
ward,'"  "Alfred  Adams,"  "Anna  IJeck,"  "  J)olphin,"  "Grace"  10 
and  "Ada."  And  the  schooners  "Triuni|ili"  and"  Wanderer" 
were  also  interfered  with  and  their  voyages  interrupted. 

On  the  11th  August,  18S7,  the  British  Ambassador  wrote 
to  the  United  States  Secretary  of  State  : — 

I!  ^1.  I.  :*<'  "  I  have  the  honour  to  inform  you  that  \Uv  Majesty's  Govern- 
ment have  received  a  telegrnm  from  the  Commander-in-Chief 
of  Her  Majesty's  naval  forces  in  the  I'acitic,  dated  Victoria, 
British  Columbia,  August  7,  reporting  the  seizure  by  Ifnited 
States  cruisers  of  thn'e  British  Columbia  sealing  schooners  in 
Behring's  Sea,  a  long  distiince  from  Sitka,  and  that  several  20 
other  vessels  were  in  sight  being  towed  in. 

"  In  conveying  this  information  to  you,  I  am  recpiested  at 
same  titne  by  the  .Marquis  of  Salisbury  to  state  that,  in  view 
of  the  assurances  given  in  your  note  of  the  3rd  of  February 
last,  Her  Majesty  (Jovernment  had  assumed  that  ponding  the 
conclusion  of  discussions  between  the  two  governments  on 
general  (piestions  involved,  no  further  seizures  would  be  made 
by  order  of  the  United  States  Government." 

To  which  on  the  13th  of  the  same  month  the  United  States 
Secretary  of  State  replied  : —  30 

K.  SI,  I.,  i;:..  "  The  reference  to  my  note  to  you  of  the  3rd  of 
February  last,  which  yoti  make  under  the  instruction  of  the 
Marquis  of  Salisbury,  has  caused  me  to  examine  the  expres- 
sions contained  thert'in,  and  I  can  discover  no  ground  what- 
ever for  the  assumption  by  Her  .Majest}-  Government,  that  it 
contained  assurances  '  that  pending  tlie  conclusion  of  discus- 
sions between  the  two  governments  on  general  (piestions 
involved,  no  further  seizures  would  be  made  by  order  of  the 
United  States  (Government.' 

"Until  your  note  of  the  11th  instant  was  received,  1  Inid  no  40 
information  of  t.ie  seizure  of  the  sealing  vessels  therein  referred 
to,  and  have  no   knowledge  whatever   of  the   circumstances 
under  which  such  seizures  have  been  made." 

"  1  shall  at  once  endeavour  to  sujijily  myself  with  the  infor- 
mation necessary  to  enable  ini'  to  rejily  to  you  more  fully." 

"The  cases  oi' seizure  rei'eried  to  in  my  note  of  I'^ebruary  3, 
ls87,  liad  occurred  during  the  previous  August,  and  upon 
the  basis  of  the  int'ormai  ion  then  obtained  I  wrote  you  as 
follows  : 

"'In  this  connection  I  take  occasion  to  inform  you  that, '•O 
without  conclusion  at  this  time  ol  any  questions  which  may  be 
found  to  be  involved  in  tlu^se  cases  of  seizure,  orders  have 
been  issued  by  the  President's  direction  toi'  the  discontiiuiance 
of  all  pending  proceedings,  the  discharge  of  the  vessels 
referred  to,  and  the  release  of  all  persons  under  arrest  in 
connection  tlierewith.'  " 

"Having  no  reason  to  anticijiate  any  other  seizures,  nothing 
was  said  in  relation  to  the  possibility  ot  such  an  occurence,  nor 


I 
I 


4 


INTRODUCTORY. 


9 


do  T  fintl  in  our  correspondence  on  the  subject  any  jyrounds  for 
sucli  an  understanding  as  you  inform  mo  hud  been  assumed  to 
exist  by  Iler  Uritannic  Majesty's  Government." 

"  A  sliort  time  since,  wlien  you  called  upon  nio  and  person- 
ally obtained  copies  of  the  record  of  the  judicial  proceeditigs  in 
the  three  cases  of  seizure  in  August  last  in  Uehring  Sea, 
nothing  was  said  in  relation  to  other  cases.  VVhothor  the 
circumstances  attendant  upon  the  cases  wliich  you  now  report 
to  me  are  tlie  same  as  those  which  induced  the  Executive  to 
direct  the  releases  referred  to,  remnins  hereafter  to  be  ascer- 
jO  tained,  and  this  with  as  little  delay  as  the  circumstances 
will  permit.'' 


In  a  letter  to  the  British  Ambassador,  dated  the  10th  Sep- 
tendier,  1887,  a  copy  wliereof  was  left  with  the  United  States 
Secretary  of  State  on  the  'JSnl  of  same  month,  the  Marquis  of 
Salisbury  fully  stated  the  contention  of  Great  Britain  with 
regard  to  the  ditferent  ([uestinns  raised,  directing  the  attention 
of  the  United  States  Government,  to  the  position  tliat  they  had 
previously  taken  in  a  similar  controversy  with  tlie  Russian 
20  Government. 

On  the  12th  October,  1887,  the  Britisli  Ambassador  wrote 
to  the  United  States  Secretary  of  State,  formally  protesting 
againstthe  seizure  of  the  schooners  "Grace,"  "Dolphin"  and 
"  AV.  P.  Say  ward,"  and  reserving  all  rights  to  compensation  on 
behalf  of  the  owners  and  crews. 

On  the  IfJth  October,  1887,  the  United  States  Secretary  of 
State  wrote  to  the  British  Ambassador  acknowledging  the 
receipt  of  the  protest  against  the  seizures  of  the  said  vessels 
and  stating  that  the  facts  would  be  at  once  investigated. 
30  On  the  19th  October,  1887,  a  similar  protest  was  made 
against  the  seizure  of  the  schooner  "Alfred  Adams"  "and 
"  againstthe  continuation  of  similar  proceedings  by  the  United 
"  States  authorities  on  the  higli  seas,"  the  receipt  of  which  was 
acknowledged  on  the  22nd  October. 

All  the  vessels  seized  in  1887,  with  their  tackle,  apparel, 
furniture  and  cargo,  were  condemned  at  the  instance  of  the 
United  States  and  several  of  the  olHcers  were  placed  and  kept 
under  arrest  for  various  periods,  and  their  crews  were  sub- 
mitted to  considerable  hardship. 


U.  s.( 

r.  s. 


L'.    Ill-J 


S.  Ks. 
Kill.  |>. 


I  tor. 


S.  i\ 
IIHi.  p 


S.  IW. 

im;,  |>. 


.s.  y.s. 

IIM'i,  |>. 


rir. 


ii..f. 

.V.I. 


40  No  seizures  were  attempted  to  be  made  in  1 888  by  the  United 
States  Government,  but  no  assurance  of  freedom  in  sealing 
having  been  given,  those  engaged  in  that  occupation  were 
greatly  hampered  in  their  operations. 


In  the  year  1880,  the  United  States  Government,  again  pro- 
ceeded to  seize  a  number  of  British  schooners  engaged  in  seal 
fishing  in  Behring  Sea,  to  warn  others  from  the  said  sea,  and 
by  intimidation  to  prevent  a  certain  other  schooner  from 
entering  the  sea.  The  names  of  the  vessels  seized  were  :  the 
"Juanita,"  "  Pathlinder,"  "  Black  Diamond,"  "Lily"  and 
°"  "  Minnie."  The  vessels  warned  were  :  the  "  Triumph,"  "Ariel  " 
and  "Kate,"  and  the  veesel  intimidated  was  the  "Wanderer." 
BS— 2 


10 


INTRODUCTORY. 


In  that  year  also,  the  Pdthfiihlir  wan  iirreeted  in  Heliriiig  Sea 
and  ordoivd  to  juocci'd  to  Sitkn,  in.^toad  ot  which  she  came  to 
tlic  jiort  of  N'ictoria.  In  tlio  yciir  18iM),  the  same  schooner 
wliile  on  a  sealing  voyage  was  lying  at  Xeah  Hay,  undergoing 
necessary  repairs,  when  she  was  hoarded  hy  an  otHcer  from 
the  United  States  (Jovernment  cutter  0'''('f'(  and  soi/.ed  on  the 
allegation  that  she  had  escajied  ai  -est  ni  1 8^!!'.  She  was  detained 
for  some  days  and  suhseciuently  released  on  instructions  from 
the  Department  at  Washington. 


r.  s.,  \, 
,..  ;t;t:,. 


r.  s.,  v.. 

]>.  L'l;:!.  Mil. 


iM,.^ 


Further  jirotest  was  nuide  hy   (ircat  {Britain  with  respect  to  10 
the  seizures,  and  diplomatic  correspondence  continued. 

This  correspondence  disi'loscs  the  lollowing  positions  assumed 
ftt  various  times  hy  the  authoiitics  oftlic  I'nited  States. 

{'!}  The  vessels  sei/cd  in  18"<(i  and  1887  were  seized  and 
condemned    on   the    grt)und    that    I5chriiig    Sea    was  a    iiuirr 

ilidlSUIII. 

(//)  Disavowing  this  ground,  a  chiiin  was  made  on  17th 
Decemher,  ISI'O,  that  the  I'nited  States  had  exclusive  juris- 
diction over  iOO  miles  fi'oin  the  coast  line  of  United  States 
territory  in  Behring  Sen.  20 

('•)  Subsecpiently,  on  the  14th  April,  1891,  the  United 
States  (tovernmeut  advanced  a  now  claim  that  they  had  a  pro- 
perty in  and  a  right  of  protection  over  fur-seals. 


On  the  15th  June,  1891,  a  mnJus  v'n-evdi  (annex  1)  was  con- 
cluded by  which  it  was  agiecd  that  (ireat  Ihitaiu  should  on 
the  one  hand  prohibit  until  May,  1892,  seal  killing  in  that 
part  of  Behring  Sea  lying  eastward  of  tlie  line  of  demarcation 
described  in  thetreaty  of  18(i7,  between  the  United  States  and 
Russia,  and  that  the  United  States  should  on  the  other  liaiid 
prohibit  seal  killing  for  the  same  period  in  the  same  part  of  30 
Behring  Sea,  and  on  the  sjiores  and  islands  thereof  in  excess 
of  a  stipulated  number. 

1'his  agreement  I'ontained  the  following  clau.se: 
"  Every  vessel  or  person  otfending  against  this  prohibition 
in  the  said  waters  of  Behring  Sea,  outside  of  the  ordinary 
territorial  limits  of  the  United  States,  may  be  seized  and 
detained  by  the  naval  or  other  duly  commissioned  otHeers  of 
either  of  the  high  contracting  parties,  but  the  v  shall  be  handed 
over  as  soon  as  practicable  ti>  the  authorities  >,.  .he  nation  to 
which  they  respectively  belong,  who  shall  akuie  have  jurisdie- 40 
tion  to  try  th(!  otfeni-e  and  imjiose  the  penalties  for  th's  same. 
The  witnesses  and  proofs  necessary  to  establish  the  ofteneo 
shall  also  be  sent  with  them." 


On  February  the  29th,  1892,  as  a  result  of  the  negotia- 
tions before  mentioned,  a  Treaty  by  which  the  difl'erences  be- 
tween the  two  (Jovernments  were  reterred  to  arbitration  was 
signed. 

The  Article  of  the  Treaty  ailecting  the  (|uestionof  com- 
petisation  was  section  8  which  is  a.-<  Ibllows  : 

"The  high  contracting  parties  having    found    themselves  50 
unable   to   agree  upon  a  relerence  whieli  sliall  include   the 


"? 


iNTRODi'irroiiy. 


11 


question  of  the  liability  of  oadi  for  the  injuries  alleged  to  have 
been  wustainod  by  the  other,  or  by  its  citizens,  in  connection 
with  the  t'lainis  |)resente<l  and  urged  by  it  ;  and,  being  solici- 
tous that  this  Hubordiiuite  ([Ui'tition  should  not  interrii[>t  or 
longer  dehiy  the  rtubniisaion  and  (k'terniination  of  the  main 
(juestions,  do  agree  that  either  may  sidmiit  to  the  arbitrators 
any  quention  of  fact  involved  in  said  claims,  and  ask  for  a  lind- 
ing  thereon,  the  iiuestion  of  the  liability  of  either  (iovornnient 
upon  the  facts  foiiiul  to  be  the  sulijeel  of  further  negotiation." 

'"  The  terms  of  reference  having  been  thus  agreed  to,  it 
became  expedient  to  etfect  some  temporary  arrangement 
similar  to  the  dkhI'is  vivoxli  of  l>>lil,  during  the  period  neces- 
sary to  obtain  tlie  award  of  tlie  Arbitrators  appointed  under 
the  Treaty  of  18! t2. 

This  was  done  by  the  /no'/iis  virrmll  concluded  on  the 
18th  April,  18'.i2,  which  practically  extended  the  modus 
rnvendi  of  IHftl,  until  the  decision  of  the  Arbitrators  should  be 
reached. 

By  Article  6,  of  the  Treaty  of  18!t2,  the  main  questions 
20  of  right  were  dealt  with.     This  Article  was  as  follows: — 

"  In  deciding  the  uuitters  submittetl  to  the  arbitrators,  it  is 
agreed  that  the  iollowing  tive  points  shall  be  submitted  to 
them,  in  order  that  their  award  shall  embrace  a  distinct  deci- 
sion upon  each  of  said  tive  points,  to  wit  : — 

"1.  What  exclusive  juris  lietion  in  the  sea  now  known  as 
the  Heliring  Sea,  and  what  exclusive  rigliLsin  the  seal  lisheries 
therein,  did  Russia  assert  and  exercise  prior  and  up  totlio  date 
of  the  cession  of  Alaska  to  the  United  States? 

"  2.  Ifow  tiir  were  these  claims  of  jurisdiction  as  to  the  seal 
30  fisheries  recognizeil  and  conceded  by  (ireat  liritain? 

"3.  Was  the  body  of  water  now  known  as  the  Behring  Sea 
included  in  the  phrase  '  I'acitie  Ocean,'  as  used  in  the  Treaty 
of  1825  between  Great  IJritain  and  Russia;  and  what  rights, 
if  any,  in  the  Bt'hring  Sea.  were  held  and  exclusively  exer- 
cised by  Russia  after  the  said  Treaty? 

"4.  Did  n.)t  all  the  rights  of  Russia  as  to  jurisdiction,  and  as 

to  tlie  seal  fisheries  in  Behring  Sea  east  of  the  water  boundary, 

in  the  treaty  between  the  United  States  and  Riis.sia  of  the  30th 

March,  ISdT,  pass  iinimiiaired  to  the  United  States  under  that 

40  treaty  ? 

"  ;■).  lias  the  United  States  any  right,  and,  if  so,  what  right 
of  [iroteetion  and  jjropcrty  in  the  fur  seals  fre(juenting  the 
islands  of  the  United  States  in  Behring  Sea  when  such  seals 
are  found  outside  the  ordinary  three  mile  limit?" 

Upon  the  questions  stated  in  this  article  the  decision  of 
the  Paris  tribunal  negatived  the  right  to  any  extra  territorial 
jurisdiction  of  the  United  States  in  Behring  Sea. 

The    necessary    result   of  the  decision     upon  these    points 

was  that  the  United  States  should  make  full  compensation  to 

50  Great  Britain  lor  all  liisses  sustained  by   reason  of  the  illegal 

interference  by  the  United  States  with    British  vessels  on  the 

high  seas. 

In  pursuance  of  the  terms  of  section  8  above  referred  to, 
Great  Britain  submitted  to  the  Paris  tribunal  certain  state- 
ments of  fact,  which  were  agreed  to  by  the  United  States  as 
proved.     Among  these  findings  were  the  following. 


12 


INTItOni'CI'OUY. 


"  Tho  roUowinj;  table  shows  tlio  iiuines  oftlio  liritirth  Hcaliiig 
vessels  seized  or  wiinuMl  by  I'liited  Stulea  revenue  cruiHers, 
lS8(l-18f>i»,  antl  the  approxitniite  tlistaneo  from  land  when 
seized.  The  (liBlaiu'fS  assigned  in  the  eases  of  the  'Car<ilcnu  ' 
'Thoniton'  and  'Onward 'are  on  the  authority  of  Tnited 
States  Naval  Commander  Ablioy  (snc  50th  Congress,  :ind 
Session,  StMiato  Kxeeutive  i>ocument  No.  10(3,  pp.  'JO,  30,  40). 
The  distances  assigned  in  the  eases  of  the  '  Anna  Heek,'  '  W. 
V.  Sa.vward,'  '  Dolphin,'  and  '  (Jraee"  are  on  tlie  authority  of 
CajUain  Sliepard,  I'nited  States  Hcvciiue  Marine  (Hhie  Hook,  10 
Uniteil  States,  Xo.  -',  1M1»0,  pp.  Sti  H±  See  Apiiendi.x,  vol. 
iii)." 


fllilr.lSlat.K 

V.S...1     MMkiiin 


Ciinilcli:) 
'rilolllliill 

niiw.iril    . 
I*';l\iililitc 


Amiih  I'iiik.. 
\V.  r.  Savuiiiil 
Di.ll.liiii  .' 

iif.nr 

Alfivd  Ailllliis. .. 

Ada 

TriiMiiiili 


Aiij.',     I,  Ml     7'')  iiiil<'!< Ciinviii. 

iln  I.   >i;       7<'      lin '       llll 

i|..     :;,  si;  n:.   ,i<>         .  i\« 

ilo       L',  Sli   Waiiiiil  liv  I'liiwin   ill  alMnii   saiiii' 

|Ni>iti<>u  as  Oiiwanl 

.Iiil>     •-'.  s;    r.i'.iiiili- KiihIi. 


20 


•luaiiita 

ratlitiiiilrr 

Trininph 

niack  Dl.'i ikI 

l.ilv 

Ai-ii-l 

Km,- 

Mlnnii' 

riitlitiii<)i'r 


llu        !l.  .»:  .V.I  .In 

(111  12.  sr  40  iiii 

■  III      I    .  ."^T  '.Mi  llo 

Aii(f.  H',  S7  (12  ilii 

ill.    2.-..  NT  l.-i  ill  I 

ill! 


ill! 

ilu 
ilii 

(III 

lira  I'. 


I,  n7   Waiiii'il  li-  liiisliniit  t tir  liilii 

iiidSfa 

.Iiilv  ;«1,.S!I     rilinil.s Itusli. 

ilii     2!*.  ."<'.l     ."ill    ill ilii 

.1.1     11.  Sli  ()iil.-r.-.l..iil  iif  rHlniinrSiiiliyHiisli 
C'l  .\"  III  I'lsiliiiM  » III  II  waiiiiil. 

ill.     II.  Sll     :•,.•,  mill- ill. 

All!-'.     I'l.  ."<'.•     Ilii     ill! ill. 

.Iiilv  ;tii,  s'.i  (iiil.iv.l  iMit  .if  IliliriiiK'Sialiv  Hush 
Aii^'.  i:i.  Sll  ,1,1  ,1,1  <l,j  ,1,1 

.Inly  l.\  Nil     il."iiiiil,'S till 

.Mar  27.  W   '.Sriztil  ill  \>  nli   I'.ay t'lirwiii. 


30 


*Ncali  r.ay  in  in  tin'  Stat.-  nf  Wasliihutmi,  ami  tin' "'  ratliliiiil,  r  "  \va«s,i/,iil  tlini' 
nn  I'liar^'fs  inaili*  a^'aiiist  Iht  in  lli  lii-iir.'  .*^c.'i  in  tin*  |ir,'\itins  yi-ar.  Sin-  v.a-.  M'l*';i..,(l 
iwii  (lays  lali  r.  j  a 

"And  wlicreastliegovernmont  of  Iler  liritannie  Majesty  did 
ask  tiio  said  arhitrators  to  find  the  said  facts  as  set  forth  in 
the  said  statcniciit,  ainl  whereas  llie  agent  and  cininsel  for  tho 
United  States  goveniineiit  thereupon  in  our  presence  informed 
us  that  the  said  statement  of  facts  was  sustained  by  the  evidence 
and  t'lat  tliey  hail  agreed  with  the  agent  and  counsel  for  Her 
Britannic  .Majesty  tiiat  we.  the  arbiirators,  if  we  should  think 
tit  so  to  do  might  tlnd  the  said  statement  of  facts  to  be  true.      50 

"  Now,  we,  the  said  arbitrators,  do  unaniniouly  tind  tho  facts 
as  set  forth  in  the  said  statement  to  be  true  " 

Tho  findings  of  fact  also  established  that  the  vessels  were 
libelled  in  the  United  States  District  Court  by  authority  of 
the  United  States. 

That  the  tines  and  imprisonment  were  for  alleged  breaches 
of  the  niiiiiieipal  laws  of  the  United  States  which  alleged 
breaches  were  committeil  in  l>chriiig  Sea  at  great  distances 
from  land. 

That  the  warnings  to  leave  IJeliring  Sea  or  not  to  enter  it 
were  it  ado  by  authority  of  the  United  States. 


INTRODlICTOnY. 


18 


20 


30 


40 


Wliilrtt,  the  moduK  vivundi  1801  was  in  lorcio,  tlic  hi-Iiooiut 
"Wimiilred"  was  Hcized  in  the  open  watera  of  Bciiriiig  Sea  tor 
an  allogt'd  liivacli  of  t!ie  moilus  Slu!  wim  fakon  to  tlie  port  of 
Onnaliiska  and  wiiilst  tiicre  was  rc-airestcd  for  an  alleged 
violation  of  tlie  iJnited  States  ('iiHtoinw  laws.  In  piirmiance 
of  this  arrest,  tiie  vessel  was  taken  to  Sitka  and  tliero  liltolled 
and  improperly  eondeinned  on  the  second  charge  pToferred 
ai^ainst  her. 

Whilst  the  moihi.s  rivrndi  of  1802  was  in  force,  the  flchooner  \\  i 
10  "  Henrietta"  was  seized  in  the  open  waters  of  lichringSeaforan 
alleged  violation  of  the  mailus,  hut  the  Unitetl  States  Qoverii- 
nient  instead  of  handing  her  over  to  the  British  authorities  to  be 
dealt  with  as  provided  by  the  terms  of  tlie  modus,  proceeded 
against  her  for  an  alleged  inlraction  of  the  municipal  laws  of 
the  United  States.  This  latter  charge  was  subsequ'Mitly  aban- 
doned, but  the  vessel  was  not  returned  to  her  owner  until  1804. 

In  1802  the  schooner  "  Oscar  &  Iliittio"  was  also  improperly 
8eize<l  for  an  alleged  violation  of  the  modus.  She  was  handed 
over  to  the  British  authorities  and  by  the  Court  of  first  in- 
20  stance  condemned  and  sold  under  process  at  a  heavy  loss  to  her 
owners.  This  condenniation  was  subsequently  reversed  on 
appeal. 

After  the  seizure  and  condemnation  of  the  schooner  "  W.  V. 
Sayward  "  in  1887,  proceedings  were  taken  against  the  condem- 
nation ;  first,  by  way  of  appeal  and  subsequently  by  writ  of 
prohibition,  on  the  occasion  of  which  Her  Majesty  paid  a  large 
amount  of  costs  which  forms  the  subject  of  a  special  claim. 


After  the  Paris  Award,  the  two  governments,  in  order  to 
arrive  at  the  amount  of  damage  to  be  paid  by  the  Government 
30  of  the  United  States,  entered  into  negotiations  which  culmi- 
nated in  the  present  Convention. 

By  reference  to  the  Convention  it  will  appear  that  in  addi- 
tion to  the  several  claims  specially  enumerated  in  tlie  above 
mentioned  findings  of  fact,  the  cases  of  the  "  Wanderer," 
"Winnifred,"  "Henrietta,"  "  Oscar  "  and  "li'attic  "  and  the  costs 
in  the  "  Sayward  "  case,  are  to  form  part  of  tiio  prescr.t  inquiry. 

It  will  further  on  bo  shown  that  the  case  of  the  "  Black 
Diamond,"'  1886,  also  forms  part  of  the  inquiry. 


All  the  vessels  seized  or  interfere<l  with  a^  aforesaid 
40  were,  when  so  seized  or  interfered  with,  ships  duly  registered 
under  the  British  Merchants'  Ship{)ing  Act  and  amendments 
thereto,  fiying  the  Mritish  (lag,  having  been  duly  cleared  from 
a  British  port  for  sealing  voyages  in  the  North  Pacific  Ocean 
and  Behring  Sea. 

The  claim  of  Great  Britain  befi)re  the  present  Conven- 
tion is : 

The    recovery    of   full    and  complete  compensation    from 
United  States  for  losses  and  injuries  sustained  by  Iler  Majesty, 
and  by  all  persons  in  wliose  behalf  (Jreat  Britain  is  entitled  to 
50  claim,  arising  out  of  the  illegal  acts  above  referred  to. 


TIIK  SCOrE  OF  TIIK  CONVKNTlON. 


K.  .-.4. 


K.  i<7. 


Arlicli's  1  niul  3  of  tlic  Convoiition  jirovido  tlint  all  cliiinison 
uccount  lit"  injtirioH  sufliiincd  In-  piTsoiisin  wlmso  liolialf  (ireat 
Mritaiii  is  entitled  to  claim  coiniK'iisatioii  fnnii  the  Ignited 
States  and  arisiti^j  by  virtue  of  the  Treaty  of  ls'.t2,  the  award 
aii<l  the  findings  of  tlie  'rriluinal  of  Arbitration  at  I'aris,  as 
also  the  adiiitional  elniins  mentioned  in  the  above  introduction, 
shall  be  referred  to  coinniissioners  who  shall  determine  the 
liability  of  the  United  States  in  respeet  of  each  claim  and 
assess  the  amount  of  compensation  to  lie  }iaid  on  uccount  10 
thereof. 

The  first  questions,  therefore,  are :  what  are  the  claims ; 
and  in  whose  belialf  is  Great  Uritain  entitled  to  claim  com- 
pensation ? 

In  tliis  coinioction  it  must  be  borne  in  mind  that  at  the  time 
of  the  Treaty  of  18!»2,  protests  had  been  made  on  behalf  of 
Great  Britain,  and  particulars  of  claims  had  hecu  fornnilated 
and  presented  to  the  Tnited  States  Government.  The  fram- 
ers  of  the  Treaty  and  Convention  had  these  protests  and  claims 
before  their  minds  in  settling  upon  the  terms  of  said  Treaty  20 
and  Convention. 

It  is  therefore  necessary  to  inquire  what  was  the  character 
of  the  protests  ami  the  nature  of  the  claims  which  hud  been 
presented  and  urged  by  Great  Britain  prior  to  the  date  of  the 
Treaty  of  1892. 

In  his  despatch  to  the  United  States  Secretary  of  State  dated 
2l8t  October,  188G,  the  British  Ambassador  says: 

"  I  have  the  honour  to  inform  you  that  T  am  now  instructed 
by  the  Earl  of  Iddesleigh,  Her  Majesty's  Principal  Secretary  of 
Otatefor  Foreign  Affairs,  to  protest  in  the  ni.me  of  ller  Mujes-  30 
ty's  Government  against  such  seizure, and  to  reserve  all  rights 
to  compensation." 

The  reply  of  the  United  States  Secretary  of  State  to  the 
British  Ambassador  dated  November  12th,  1 88*!,  acknowledges 
the  receipt  of  the  protest  and  reservation  of  all  rights  to  com- 
pensation, and  states:  ^^  All  of  which  shall  receive  respectful 
consideration." 

On  the  12th  (Mober,  1887,  the  British  Ambassador  writing 
to  the  United  States  Secretary  of  State  with  reference  to  the 
cases  of  the  "(irace,"  "Dolphin"  and  "  \V.  U.  Sayward,"'  says:  49 

"  I  have  the  honour  to  itiform  you  that  I  am  now  ftirther 
instructed  to  make  similar  representations  in  the  cases  of  the 
British  Columbian  vessels  '(irace,'  '  Dolidiin  "  and  '  W.  1\ 
Sayward,'  seized  lately  by  the  United  States  revemie  cutter 
'  Richard  Rush',  and  at  the  same  time,  as  in  the  case  of  the 
'■Onward,'  ^  Carolena'  and  '  Thnrntoit'  to  resirve  all  riijhts 
to  cimpensation  on  behalf  of  the  owners  and  ernes." 

U 


TUE  SCOPE   OF   THE   CONVENTION. 


15 


()!)  tho  18th  October,  1887,  receipt  of  tlio  above  letter 
"  witli  iiotiticatioii  tlmt  I  for  IJritiiiinic  Majesty 'b  Goveriiniont 
reserve  all  right  to  cumpeiisation  on  beliaUOf  the  owiiers  and 
crewrt  of  the  above  niciitioiied  veasela  was  acknowledged." 

A  number  of  the  claims  in  (luostion  having  been  filed  by 
the  parties  interested  with  the  British  Government  the  follow, 
ing  iujIcs  veiliitlcs  were  exchanged  between  the  two  govern- 
ments : 

"  Her  Majesty's  Qovornmcnt  have  jnat  received  the  parti- 
^^  eulars  ot  the  claims  lor  compensation  on  account  of  liritish 
sealers  seized  and  warned  oil"  by  the  United  States  authorities 
in  Hehring  Sea. 

"  A  just  assessment  of  these  claims  appears  to  tliem  difficnlt 
without  investigation  and  verilieation,  and  they  therefore  wish 
to  ascertain  whether  tho  United  Staten  (loveinment  would  be 
disposed  to  agree  to  a  mixed  coTiuni.-'sion,  to  be  restricted  to 
inquiring  in  each  ease  whether  con  ponsation  is  due  and  the 
amount  of  such  comjiensation. — Wat^hington,  April  18,  1888." 

"  Kesponding  to  the  note  rerlmle  of  Sir  Lionel  West,  dated 
20  the  18tli  instant,  it  is  suggested  on  behalf  ol'tl'.;  United  States 
that,  as  tho  cases  ot  seizure  of  British  vessels  in  Cehring  Hea, 
therein  referred  to,  are  now  in  court  i>ending  an  appeal  from  a 
judicial  decision,  it  is  preferable  to  await  the  judgment  of  the 
appellate  court  in  the  premises. — AVashington,  Aiiril  21,  I888.'» 

In  June,  18U0,  the  British  Anibar^saJor  left  with  the  United 
States  Secretary  of  State  a  protest  in  which  the  following  pas- 
sage occurs  : — 

"  The  undersigned  is  in  consequence  instructed  formally  to 
protest  against  such  interference  and  declare  that  Tier  Britannic 
30  Majesty's  Government  must  hold  the  Government  of  the  United 
States  respotisible  for  the  coiiniijucncrs  that  mmj  ensue  from  arts 
lohich  arc  contrary  to  the  cstaldishcd  principles  of  international 
law." 


li.  r,!i. 


Vul. 
L'LM. 


V.  s. 


I 


The  claims  actually  submitted  by  Groat  Britain  referred  to 
in  trie  voles  vcrbales,  and  which  were  afterwards  presented  to 
the  Paris  tribunal  comprised  a  demand  for  compensation  due 
to  all  parties  interested  ;  for  instance,  in  the  claim  of  Morris 
Moss  for  the  schooner  "  Lily  "  seized  in  the  year  1889,  paragraph 
6,  states : — 

40  "  I,  for  myself,  and  the  crew  and  hunters  of  the  said  'Lily  ' 
claim  damages  against  the  (Government  of  the  United  States 
of  America  for  the  seizure  of  the  said  '  Lily,'  and  for  the  tak- 
ing and  detention  of  said  333  seal  skins,  and  for  1,767  seal 
skins,  the  balance  of  the  estimated  catch  of  2,100  in  Behring  Sea 
for  the  full  season  of  1889." 

The  claim  of  George  Byrnes  for  the  schooner  "Triumph  " 
in  1887  (paragraph  8)  reads: — 

"  I,  for  myself  and  the  crew  of  the  said  schooner  on  said  voyaqe, 
claim  from  the  Government  of  the  United  States  damages  for 
^"  the  illegal  boarding  and  searching  of  the  said  schooner 
'Triumph  '  and  for  the  breaking  up  of  the  said  schooner's  seal- 
ing voyage,  whereby  I  and  the  said  crew  lost  the  benefit  and 
advantage  of  a  catch  of  at  least  1,000  seal  skins." 


16 


THB   SCOPE  OF  THG  OONVBNTION. 


In  tlio  claim  of  Snnniol   W.  Kiifknain  for  tho  schoonor 
"Ariel,''  paru|rraph  1-  rciuls  : — 

"I,  for  mysch',  and  tlio  8ai«l  .lolm  Nf.  Taylnr,  and  tlio  said 
Rela  K.  Tjuwronce,  my  co-ownors  in  tui'ul  Hiiiooner  '  Ariel,* 
atiil  Wit'wise  for  thv  creir  of  Ihv  naiil  '  Arii i  '  on  .vtiil  voi/m/r  who 
irrrr  and  <iir  fiitlllcil  to  shitre  in  the  total  calnh  of  se(il-xl;iiia  Inj 
siii'l  vessel  for  tin  full  sragnu  iil'onsaitl,  rlaini  damuijOB  of  and 
from  tho  Goveniinont  of  the  'Jnited  Slates  of  America  for  tho 
illegal  hoarding  a8  aforcHaid  oltliCHaid  Bcliooncr,  and  for  having 
by  threats  and  intimidation  broken  up  the  voyage  of  tlio  said  10 
schooner  'Ariel'  and  Ihirrby  cuiisiil  the  loss  of  at  least  1,15G 
seal-skins  to  the  sniil  nssel,  her  owners  and  crew." 


On  reference  to  article  1  of  the  Treaty  of  18!*2  it  appears  that 
u  Tribunal  of  Arbitration  waa  agreed  to  for,  inter  alia,  the 
purpose  of  settling  "  the  questions  which  have  arisen  between 
theQoverimientof  Her  IJritaiinic  Majesty  and  the  Government 
of  tho  United  States  concerning  the  jurisdictional  rights  of 
tho  United  States  in  tho  waters  of  Behring  Sea,  and  concern- 
ing also  the  preservation  of  the  fur-seal  in,  or  habitually 
resorting  to  the  said  sea,  and  the  rights  of  the  citizens  and  t>0 
subjects  of  either  country  as  regards  the  taking  of  fur-seal 
in  or  habitually  resorting  to  tho  said  waters." 

Article  8  provided  : — 

"The  high  contractijig  parties  having  found  themselves 
unable  to  agree  upon  a  reference  which  shall  include  the  ques- 
tion of  the  liability  of  each  for  the  injuries  allegetl  to  have 
been  sustained  by  tho  other,  or  by  its  citizens,  in  connection 
with  the  claims  presented  and  urged  by  it ;  and,  being  solicitous 
that  this  subordinate  question  should  not  interrupt  or  longer 
delay  the  submission  and  determination  of  the  main  questions,  3U 
do  agree  that  either  may  8ul>nnt  to  the  arbitrators  any  ques- 
tion of  fact  involved  in  said  claims  and  ask  i'or  a  finding 
thereon,  the  (piestion  of  the  liability  of  either  government  upon 
the  facts  found  to  be  the  subject  of  further  negotiations." 

The  findings  of  fact  in  tho  Paris  Award  refer  to  tho  crews 
mentioned  in  the  claims  in  these  words  : — 

"  1.  That  the  several  searches  and  seizures  whether  of  ships 
or  goods  and  the  several  arrests  of  masters  and  crews  respect- 
ively mentioned  in  the  schedule  to  the   British  Case,  pages  1 
to  60  inclusive,  were  made  by  the  authority  of  the  United  40 
States  Government." 


It  is  a  well  recognized  principle  of  law  established  by  both 
American  and  English  autlioritics  that  vessels  are  deemed  to 
be  a  part  of  the  territory  of  the  nation  to  which  they  belong 
and  that  all  serving  on  board  aro  entitled  to  the  protection  of 
its  fiag. 

1.  Hc|i.iiisun's       In  support  of  this  proposition  we  refer  to  the  case  of  the 
uliKirtli,  \>.  'J3  "  Endrought,"  where  the  nationality  of  the  master  of  a  trading 
vessel   being  in  question  Sir  W.   Scott  says  "  that    mariners 
are  to  be  characterized  by  the  ronntry  in  whose  service  they  are  ^" 
employed." 


*  *Jf 


TUK   SCOPE  OF  THE   CONVENTION. 


17 


Wtukn  itf 
l>;u)i.l    WiU 
^tvr,  !ltli  ir|j 
thin.  Mil.  .*>, 
|..  I  Id. 


Webster  in  liia  8peech  in  <lofoiico  of  the  VVimhiiigtoii  Treaty 
uftor  qiiotiiifj  tVoru  u  letter  from  the  Du)iartnioiit  of  Stuto  to 
the  Mritinh  I'leiiipotentiury 

*^  Iti  eviri/  rii/ularly  ditcnmentrd  Amrriran  mrrchant  vessel 
the  crew  who  naoujate  it  will  find  their  jHotectinn  in  the  jUuj 
which  is  over  ihem.^'  proeoetis  im  follows : 

"Tliirt  (lecliiration  will  stand,  not  on  aeeount  of  any  iiartieii- 
lar  ability  (linphiye<l  in  the  letter  which  it  coneludcs,  still  lewn 
on  aeeount  of  the  name  sulwcrihed  to  it.  lint  it  will  stand  lio- 
lOeauso  it  announces  the  true  prineiploa  of  puhlie  law,  hceauso 
it  announces  the  great  doctrine  of  the  ccjuality  and  inde- 
pendonee  of  nations  upon  the  seas  ;  and  because  it  announces 
the  determiinition  of  the  Government  and  the  people  of  tho 
UnitctI  States  to  uphold  those  principles  and  to  maintain 
tliat  doctrine  througli  good  report  and  through  ill  report 
forever.  #  #  #  llenccforth  the  deck  of  every 
American  vessel  is  inacccssihio  for  any  such  purpose.  It  is 
protected,  guarded,  defended  liy  the  declaration  which  I  have 
road  and  tliat  declaration  will  stand." 

20      In  the  case  of  the  Queen  vs.  Anderson   wlicro  again  a  trad- 
ing vesssel  was  in  question.  Lord  Hlackhurn  observed  : — 

"  The  expression  '  British  sntman  '  nuty  mean  aiie  irho,  irhut-  \,.  n.  rnmu 
eicr  his  natuinnlity  is  servina  on  Imurd n  British  shiv."  Cmsis  k,s.-i- 

•^  *'  '  Viil,    \  1,1.    I, 

l>.  tii:>. 
And  Bylcs,  J.  said  : 

"I  told  the  jury  that  the  ship  being  a  Britisli   ship  was  ||,|,|  ,,  i,;,^ 
under  tho  circumstances  a  floating  island  where  the  Britisli  law 
prevailed  ;  tliat  the  prisoner  though  an  alien  was   under  the 
protection  of  the  British  law  and  was  as  much  subject  to  its 
sanctions  as  if  he  had  been  in  the  Isle  of  Wight." 

30     In  the  case  of  St.  Clair  vs.  the  United  States  the  Supreme 
Court  in  giving  judgment  say  : — 

"A  vessel  registered  as  a  vessel  of  the  United   States  is  r.  s.  h,.,„„u 
in  many  respects  considered  as  a  portion  of  its  territory,  and  i"''.  i'-  '•''-■ 
'  persons  on   board   are   protected  and  goveriied  by  the  laws 
of  the  country  to  which  the  vessel  belongs.' " 

In  the  case  of  Worth  vs.  the  United  States  (Alabama  Claims), 
Rayner  J.  said  ; — 

"  If  this  right  of  the  foreigner  inures  to  him  in  time  of  war_.^,,„  j,,^  ,^,, 
between  his  native  and  his  adopted  country,  how  much  more  Nm!  l'i'.\'ii.i  " 

40  consistently  may  it  not  seem  to  belongto  him  in  timn  of  peace?  ^•'rj;;'^"'""K- 
If  he  may  rightfully  claim  this  protection  when  merely  residing  '  "  " 
or  sojourning  here,  in  the  pursuit  of  his  gainful  callings,  with 
how  much  greater  contidence  may  he  appeal  to  it  when  he  has 
braved  the  perils  of  the  deep  and  embarked  his  hopes  and  his 
fortunes  under  that  flag  which  is  the  ensign  of  the  nation's 
power  and  glory  ?  Of  all  the  nations  of  Christendom  not  one 
has  done  so  much  to  vindicr  "■  i  'he  freedom  of  the  seas  against 
that  proud  and  mighty  nativ  ^  that  claims  to  be  their  '  mistress ' 
as  the  United  States  of  America.     No  other  nation  has  done  so 

50  much  in  imparting  to  its  flag  that  moral  power  which  speaks  to 
the  nations  in  the  still  small  voice  of  warning  that  it  is  the  emblem 
of  a  nation's  might,  and  that  if  he  who  trusts  to  its  protection 
be  harmed  under  it,  his  wrongs  shall  not  go  unredressed." 

B&— 3 


II 


TilK  8C0I>K   OF  TIIK   UONVKNTION. 


Ill  Scliroibor  JM.  tlio  I'liitetl  StatoH,  Mr.  .Fimfico  .r«\vt'll  (|iii»t»!8 
with  u|>proval  tlio  followiiifj  Htatfiiioiit  I'roin  the  miniu  jiulg- 
nii'iit : — 

lla( kill  'III         "  [t  wiiH  11  tjroat  priiici|>li'  for  wliiih  our  jfoviTiiiiiciit  liml 
\',ji'"'l'.''irsi    coiitt'iHloil    iVoiii    its   orij^in,  a    iiriiiiipli'   idoiititii'd    with    the 
frei'ihdii  ot'thu  sens,  viz. :  that  tlio  lla-,'  |irotocti'tl  tlio  nhiji  ami 
ovury  person  ami  thing  thuroon  not  coiitruhaiiil." 


It  is  ther.^ioro  snlinnttcfl  that  the  ilaiiiiH  referred  to  arc  all 
llif  cbiiins  whli'li  iiail  bi'eii  pn'sontod  and  urged  h\  Great  ISritaiii 
prior  to  the  date  of  the  Convention;  and  further  that  Great  10 
Hritain  in  entitled  tn  eoinpeiiHation  from  the  United  States  on 
her  own  iiehalf,  and  on  hehalf  of  every  person  who  was 
interested  in  any  of  the  ve.-'seU  in  question,  their  cargoes  and 
voyage,  rilhrr  (ts  owner,  muslfr,  imtlt;  mcmlur  ol  the  crew,  or 
ollh'rwisi. 


KKKKCT  OF  Til  15  I' A  HIS  AWAIll). 


(Tudor  tlio  terms  of  tlio  Treaty  of  1802  hotli  govciiimoritB 
wore  at  lilierty  to  Hiibmit  to  the  I'ariH  Trihnnal  any  <|Ui>rttioti 
of  I'aot  coMiiected  with  tlio  daiiuB,  .-Md  tlio  fiiidiiij,'8  inudo  hy 
tho  triliiiiial  upon  any  (|ncBtioii  so  submitted  are  tiiial :  Imt  it 
is  iiicunilioiil  upon  tlie  coimiiissioners  to  pass  upon  any  addi- 
tional facts  arising?  in  any  claim  before  them. 

The  fmdings  of  the  Turis  Tri'.)unal  have  boon  previously 
quoted,  and  with  reference  to  tho  claims  which  were  then 
10  before  the  arbitrators,  conclusively  estulilish  every  point  neces- 
sary to  the  j?ranting  of  compensation,  save  only  the  assessment 
of  tho  damages  sustained,  and  tho  (|Uc8tion  of  alleged  United 
States  citizenship  of  certain  claimants  which  matters  were 
withdrawn  from  consideration  there. 

It  is  unnecessary  to  discuss  this  subject  further  as  it  is 
common  ground, 

Mr.  Blodgott,  one  of  the  United  States  counsel,  in  his  writ- 
ten argument  on  damages  submitted  to  tho  Paris  tribunal  says : — 

"Wo,  however,  preface  what  wo  have  to  submit  on  this  r.  s.,  n,  jit. 
20  feature  of  the  case  by  saying  that,  if  it  shall  bo  hold  by  this 
tribunal  that  these  seizures  and  intorforonces  with  British 
vessels  were  wrong  and  unjustifiable  under  the  laws  and 
principles  applicable  thereto,  then  it  would  not  be  becoming 
m  our  nation  to  contest  those  claims,  so  far  as  they  are  just 
and  within  tho  fair  amount  of  the  damages  actually  sustained 
by  British  subjects." 

And  to  the  same  ott'ect  was  tho  language  of  the  leading 
counsel  for  the  United  States  on  the  opening  day  of  this  com- 
mission, when  ho  said  : — 

80      "  The  representatives  of  Iler  Majesty's  Government  aiid  of  h  5,  |,  m 
the  United  States  came  together  in  Washington  with  certain 
facts  settled,  to  wit,  the  illegality  of  certain  seizures." 

And  further  on,  after  alluding  to  the  subject  of  United 
States  citizenship  which  will  bo  hereafter  discussed,  pro- 
ceeds : — 

"  But,  as  to  tho  main  question,  tho  United  States  Govern-  h.  5,  i,.  ir.. 
ment  is  as  anxious  as  Her  Majesty's  Government  can  be,  to 
have  this  sum  fixed  that  we  shall  pay,  and  fixed  as  expediti- 
lusly  as  possible.  We  are  not  disputing  tho  liability.  The 
40  liability  having  been  fixed,  tho  United  States  Government 
wants  to  pay  the  last  dollar  of  damages  for  which  it  is  liable, 
and  to  pay  it  as  soon  as  the  amount  can  Ijo  agreed  upon,  or 
fixed  by  this  commission." 

And  again  : — "  There  is  no  difficulty  in  my  learned  friends,  h.  10,  i,.  1. 
representing  Her  Majesty,  putting  in  their  entire  case,  for  it  is 
a  more  assessment  of  damages  in  tho  ordinary  way." 


ciU<^^ 


i^if^'f 


19 


MEASURE  OF  DAMAGE. 


The  iVftH  in  rospcct  of  wliich  damages  are  claimed  were 
aquivaleiit  to  an  iinwarmnted  invasion  of  the  territory  of  a 
friendly  power  in  time  of  peace.  They  constituted  an  insult 
to  the  flag  of  Great  Uritain,  repeated  from  time  to  time, 
accompanied  by  the  seizure  and  confiscation  of  valuable  pro- 
perty, in  the  face  of  contiinied  protests,  and  even  after  the  acts 
and  declarations  ot  the  United  States  Government  had  given 
an  implied  assurance  to  the  contrary. 

The  right  asserted  was  so  extraordinary  in  its  character,  10 
and  in  particular  so  contrary  to  the  position  assumed  by  the 
United  States  in  their  dealings  with  other  nations  where  the 
same  principle  was  involved,  that  it  could  not  in  the  ordinary 
course  of  events  have  been  anticipated  by  any  of  the  persons 
engaged  in  pelagic  sealing  which  it  was  the  avowed  intention 
of  the  seizures  to  interrupt  and  forever  destroy. 

The  injuries,  therefore,  which  were  inflicted  were  the  result 
of  a  wrong  unprecedented  in  its  character,  designedly  perpe- 
trated, without  notice,  upon  innocent  persons  carrying  on  a 
lawful  occupation,  executed  in  a  most  arbitrary  maimer,  and  20 
accompanied  with  circumstances  of  great  hardship  and  suffering. 

The  damages  thus  caused  have  been  aggravated  by  the  fact 
that  for  many  yearstheUnitedStatesliavedisputedtheirliability, 
shifting  their  ground  from  time  to  time  from  one  untenable 
position  to  another  equally  unsound,  during  the  whole  of  which 
period  they  have  failed  to  make  any  reparation  whatever  to 
the  parties  who  were  the  direct  sufferers  from  their  acts  and 
pretensio!i8. 

It  having  now  been  determined  beyond  question,  that  there 
was  no  foundation  in  international  law  for  the  assertion  of  an}  30 
of  the  claims  put  forward  by  the  United  States,  the  ordinary 
practice  among  nations  requires  that  the  damages  should  be 
assessed  upon  a  scale  so  liberal  as  to  leave  no  room  for  doubt 
that  any  form  or  class  of  injury  sustained  has  been  left  without 
a  full  and  just  reparation. 


In  support  of  the  position  here  assumed  the  language  of  the 
counsel  for  the  United  States  before  the  Geneva  arbitration 
may  be  quoted. 

In  laying  down  tlie  rule  which  should  control  that  tribunal 
in  the  assessment  of  damages  in  cases  similar  to  that  now  ^q 
before  the  present  commission  they  submitted  the  following 
propositions  of  law  : — 

"  (<7.)  AVhen  the  demand  of  damage  is  founded  on  a  tort,  as 
distinguished  from  a  contract,  severity  is  to  be  shown  toward 
the  wrong-doer,  and  the  losses  which  the  injured  party  has 


^^ 


1 


MBASnUE   OF   DAMAGE. 


21 


Buftered  are  to  be  appreciated  with  liberality  for  the  purpose 
of  indemnification. 

"  Infractions  of  contract  are  to  be  anticipated,  in  view  of  the 
too  prevalent  carelessness  of  men  in  this  respect,  the  possibility 
of  which  will,  therefore,  have  been  foreseen  and  taken  into 
consideration  by  the  other  party. 

"  But  when  there  is  violent  wrong,it  is  a  fact  beyondprovision, 
which  of  course  occasions  more  perturbation  and  derangement 
of  the  affairs  of  the  injured  party,  and  which  has  a  character 
10  of  perversity  more  grave  than  that  involved  in  the  mere  non- 
execution  of  a  contract.  Of  course  reparation  should  be 
exacted  with  more  rigour. 

"  {b.)  Wlicvi  the  damage  claimed  is  founded  on  a  tort,  the 
culpable  animus  of  the  wrong-doer  constitutes  an  eler.-snt  of 
the  question  of  daiTiage.  In  such  cases  the  injured  party  is 
entitled  to  damages  beyond  the  amount  of  actual  loss,  in  the 
nature  of  exemplary  or  punitive  damages." 

And  later  in  the  same  argument  they  say  : — 

"  The  doctrine  in  this  respect,  as  understood  in  Great  Britain 
20  and  the  United  States,  is  stated  by  an  American  author  as 
follows : — 

"  'In  these  actions  all  circumstances  of  aggravation  goto 
the  jury. 

"  'The  necessary  result  of  this  rule  is  that  all  the  attendant 
circumstances  of  aggrsivation  which  go  to  characterize  the 
wrong  complained  of  may  be  given  in  evidence  ;  and  so  it  has 
been  held,  both  in  England  and  in  this  country.  Indeed,  it 
may  be  said  that  in  cases  of  tort,  where  no  fixed  and  uniform 
rule  of  damages  can  be  declared,  the  functions  of  the  court  at 
30  the  trial  of  the  cause  are  mainly  to  the  reception  and  exclusion 
of  evidence  when  offered,  either  by  way  of  aggravation  or 
mitigation,  and  to  a  definition  of  the  line  between  direct  and 
consequential  damage.' 

"On  this  point  there  is  unanimity  of  opinion  among  jurists, 
both  of  the  common  law,  as  in  Great  Britain  and  the  United 
States,  and  of  the  civil  law,  as  in  countries  of  the  Roman  law 
in  Europe  and  America. 

"  The  illustration  of  this  rule,  as  among  private  persons,  also 
applies  to  governments. 
40  "  In  fact,"  says  Mavne,  "  if  any  other  rule  existed,  a  man  of 
large  fortune  might,  by  a  certain  outlay,  purchase  the  right  of 
being  a  public  tormentor.  He  might  copy  the  example  of  the 
young  Homan  noble  mentioned  by  Gibbon,  who  used  to  run 
along  the  Forum,  striking  every  one  he  met  upon  the  cheek, 
while  a  i<lave  followed  with  a  purse  making  a  legal  tender  of 
the  statutory  shilling." 


The  law  as  above   etmnciated    is    supported   by    undoubted 
authority. 

Sutherland  on  Damages  (referred  to  by  Mr.  Blodgett  in  his 
50  written  argument  at  I'aris  as  now  a  standard  authority  in  the 
courts  of  the  United  States,  at  page  160,)  points  out  that  the 
motive  with  which  a  wrong  is  done  in  some  cases  afiects  the 
rule  by  which  compensation  is  measured.  Where  there  is  a 
fraud  or  other  intentional  wrong,  there  is  not  the  same  strict- 
ness to  exclude  remote  and  uncertain  damages,  even  where 
punitive  damages  are  not  involved.     And  then,  after  pointing 


22 


MEASURE   OF   DAMAGE. 


Slitlli'i'InIK 
Kil.,  Vul. 


I    Mil 

L'ikI 

I, 


PdtliirrOMi- 
eiiticiiis(Kvan» 
Tr;in>lati"ii>, 
N.is.  llli,   I.V.I, 
lt)0,  H!2,  ami 
lli:i. 


Il>iil.  1<i{i  aii'l 


out  that  this  does  not  so  much  ajiply  to  contracts,  whore  the 
party  can  protect  liimselt'by  express  stiiJulations,  proceeds: — 

"  None  of  these  considerations  have  any  bearing  in  an  action 
purely  of  tort.  The  injured  [larty  has  consented  to  enter  into 
no  relation  to  the  wrong-doer  by  which  any  hazard  of  loss 
should  be  incurred  ;  nor  has  he  received  any  consideration,  or 
chance  of  benefit  or  advantage,  for  the  assumption  of  such 
hazard  ;  nor  has  the  wrong-doer  given  any  consideration,  nor 
assumed  any  risk,  in  conseciuence  of  any  act  or  consent  of  his. 
The  injured  party  has  had  no  opjiortunity  to  protect  liiniselflO 
by  contract  against  any  uncertainty  in  the  estinuite  of  damages ; 
no  act  of  his  has  contributed  to  the  injury  ;  he  has  yieldecl 
nothing  by  consent ;  and,  least  of  all,  has  he  consented  that 
the  wrong-doer  might  take  or  injure  his  projierty,  or  deprive 
him  of  his  rights,  for  such  sum  as,  by  the  strict  rules  which 
the  law  has  established  for  the  measurement  of  damages  in 
actions  upon  contract,  he  may  be  able  to  show  with  certainty 
he  has  sustained  by  such  taking  or  injury.  Especially  would 
it  be  unjust  to  presume  such  consent,  and  to  hold  him  to  the 
recovery  of  such  damages  oidy  as  may  be  measured  with  cer-  20 
tainty  by  fixed  and  definite  rules,  when  the  case  is  one  which 
from  its  very  nature,  attbrds  no  elements  of  certainty,  by  which 
the  loss  he  has  actually  sufiered  can  be  siiown  with  accuracy 
by  any  evidence  of  which  the  case  is  susceptible  ;  nor  is  he  to 
blame  because  the  case  happens  to  be  one  of  this  character  ;  he 
has  no  choice,  no  selection.  The  nature  of  the  case  is  such  as 
the  wrong-door  has  chosen  to  make  it ;  and  upon  every  consi- 
deration of  justice,  he  is  the  Jiarty  who  should  be  made  to 
sustain  all  the  risk  of  loss  which  may  arise  from  the  uncer- 
tainty pertaining  to  the  nature  of  the  case,  and  the  difliculty  30 
of  accurately  estimating  the  results  of  his  own  wrongful  act." 

rothier  after  laying  down  the  doctrine  that  in  cases  of  con- 
tract the  debtor  is  presumed  to  have  undertaken  to  pay  oidy 
Buch  damages  as  may  have  been  foreseen  as  the  natural  result 
of  the  broach  of  contract,  or  such  as  under  the  circumstances 
of  the  particular  case  must  have  been  foreseen,  proceeds  thus 
to  enumerate  the  principles  governing  in  cases  of  torts  : — 

"  The  principles,  which  wo  have  hitherto  established,  do  not 
prevail  when  it  is  the  fraud  of  my  debtor,  that  gives  me  a 
claim  tor  damages  and  interests,  in  this  case  the  debtor  is  40 
liable,  indiscriminately,  for  all  the  damages  and  interest  wMch 
I  have  sutt'erod  in  consequunccof  his  Iraud  ;  not  only  for  those 
wli it'll  I  have  suft'ercd  in  respcit  of  the  thing  which  is  the 
object  of  the  contract,  /troplir  nmiiisiim,  but  for  all  damages  in 
respect  ot  any  other  property,  without  regarding  whether  the 
debtor  could  bo  presumed  to  have  intentionally  subjected  him- 
self to  them  or  not ;  for  a  person  who  coinmits  a  fraud  obliges 
himself,  vclil  vnlit,  to  the  reparation  of  all  the  injury  which  it 
nuiy  occasion. 

"  The  damages  and  interests  which  result  from  the  fraud  60 
of  the  debtor,  differ  also  from  ordinary  damages  and  interests  ; 
inasmuch  as  the  law  of  the  code  abo\e  cited,  and  the  modera- 
tion whifli,  according  to  the  spirit  of  that  law,  is  reserved  with 
respect  to  common  damages  and  interests,  does  not  apply  to 
those  which  result  from  fraud.  The  reason  of  the  ditierence 
is  evident ;  this  moderation,  which  is  pra<tised  with  respect  to 
ordinary  damages  and  interests  is  founded  upon  the  principle 
alreaily  developed,  that  a  delitor  catniot  be  presumed  to  have 
intended  to  subject  himself  tn  the  obligation  of  ilamages  and 
interest  to  a  greater  amount  than  he  could  suppose  tliat  the  (10 


..** 


^ 


MEASURE    OF    DAMAQE.  28 

clama£;e8  an;!  interest  to  which  he  submitted,  in  default  of  per- 
forming his  obligation,  would  come  to.  Now  thi.s  principle 
cannot  have  any  application  with  respect  to  damages  and 
interests  arising  from  fraud  ;  because  whoever  commits  a  fraud 
obliges  himself  indiscriminately,  velU  nolil,  to  the  reparation  of 
the  injury  which  it  occasions  ;  it  ought  nevertheless  to  be  left 
to  the  prudence  of  the  judge,  even  in  cases  of  fraud,  to  use  a 
certain  degree  of  indulgence  in  the  estimate  of  damages  and 
interest. 
10  "These  decisions  apply  whether  the  fraud  has  been  com- 
mitted, delvii/uendo  or  contraliendo,  Molin,  ibid.  n.  155." 

The  rules  as  laid  down  by  Pothier  arc  embodied  in  articles 
1146  to  1151  inclusive,  of  the  Code  Napoleon,  as  follows  : — 

"  Article  1140. — Damages  are  due  only  when  the  debtor  is 
in  default  to  fulfil  his  obligation,  except,  however,  when  the 
thing  which  the  debtor  has  bound  himself  to  give  or  to  do, 
could  be  given  or  done,  only  within  a  certain  time,  which  he 
has  allowed  to  pass." 

"  Article  1147. — The  debtor  is  condemned,  if  there  is  occa- 
20  sion  for  it,  to  the  payment  of  damages,  whether  for  inexecution 
of  the  obligation  or  delay  in  its  execution,  unless  he  proves 
that  the  inexecutiim  proceeds  from  an  extraneous  cause  which 
cannot  be  attributed  to  him  ;  even  if  there  be  no  bad  faith  on 
his  part." 

"Article  1148. — No  damages  are  due,  when  in  consequence 
of  irresistible  force  or  fortuitous  event,  the  debtor  has  been 
prevented  from  giving  or  doing  that  to  which  he  was  obliged, 
or  has  done  what  it  was  forbidden  him  to  do." 

"Article  1149. — The  damages  due  to  the  creditor  are  in 
30  general,  the  loss  he  has  sustained  and  the  profits  of  which  he 
has  been  deprived,  saving  the  following  exceptions  and  modi- 
fications." 

"  Article  11 ''O. — The  debtor  is  liable  only  for  the  damages 
which  were  foreseen  or  which  might  have  been  foreseen  at  the 
time  of  the  contract,  when  the  inexecution  of  the  contract  is 
not  caused  by  his  fault." 

"  Article  1151. — Even  in  the  case  where  the  inexecution  of 
the  contract,  results  from  the  debtor's  fraud,  the  damages 
should  include,  as  respects  the  loss  suftered  by  the  creditor  and 
40  the  profit  of  which  he  has  been  deprived,  only  what  is  an 
immediate  and  direct  consequence  of  the  inexecution  of  the 
contract."' 

See  also  Laurent,  Principes  du  Droit  Civil,  Nos.  283  and  i.iumnt,  Nos. 
628.  ^^^. 

Under  the  latter  article  he  proceeds  thus  : 

"  Are  the  ruleu  which  the  code  establishes  as  to  damages  in 
the  matter  of  contractual  obligations  applicable  to  the  action 
which  arises  from  an  ofFciice  or  quasi  offence  ?  No,  in  so  far  as 
these  rules  are  founded  on  the  existence  of  a  contract. 

50  "Articles  1150  and  1151  establish  a  responsibility  that 
differs  according  as  the  debtor  is  in  good  faith  or  is  guilty  of 
fraud.  It  is  agreed  that  this  distinction  is  inapplicabte  in  the 
matter  of  torts.  The  author  of  it,  even  though  he  be  in  good 
faith,  must  repair  all  the  damage  caused,  whether  it  could  have 
been  foreseen  or  not.  If  in  contractual  obligations,  a  distinc- 
tion is  made  between  the  damages  that  could  have  been  fore- 
seen at  the  time  of  the  contract,  and  those  which  could  not 
have  been  foreseen,  tliat  is  because  of  the  very  nature  of  the 
damages  which  result  from  a  contract ;  it  is  supposed  that  the 

60  parties  have  tacitly  agreed  that  the  responsibility  shall  not 


24 


MEASURE  OF  DAMAGE. 


;<1,  Dnn.i. 
IdimIhs  No.  (i.S4 


See  aiso  Demolombe  • 
l.e'ta.tLl'?'-''™'-^  """  "  -'«"■■■'■'«  f"'  "■«  "-age  '" 

tT.istn'^"'""' '" "'"'"  '""«'«iM""''i«ii  it  gives  *:; 

necSarv      \Vo)n;^  very  wise;  we  might  even  say 

necessary.     \\  e  have  not  here  to  seek  for  the  common  inf«n 

IZ  "J V^' }'"''''' ^^^  tf'«  j»^lfe'«  '"ust  do  in  the  cZ  o   co      '  " 

Ivhttlf     "",''  ''^'^^^'•'^"'g   to  equity,  the  sovereign  rule  to 
^^hlch  we  are  always  brought  back  in  tlie  matter.- 


LOSS  OF  CATCH. 


Great  Britain  is  entitled  to  recover  for  loss  of  catcli  as  beiiis: 
the  direct  coiiseiiuence  not  only  of  the  acts  complained  of  Imt, 
art  ln'iiig  the  very  oltject  of  rsuch  acts. 

Tiie  content  ion  of  the  counsel  for  the  United  States  before 
the  Paris  Trl])unul  may  possibly  be  repeated  before  this  com- 
mission.    It  was  said  in  that  aronnient; — 

"  All  the  claims  contain  an  item  for  "  loss  of  i)robable 
catch  " ;  "  loss  oi'  estimated  catch"  ;  "  balance  of  probable 
10  catch";  "probable  catch,  iV:c."  and  it  is  contended  that  all 
these  items  are  subject  to  tlie  objection  that  they  are  prospec- 
tive profits  ;  uncertain  and  contingent  in  their  nature  and 
catniot  be  made  the  basis  of  claim  for  compensation. 

Various  authorities  were  cited  in  support  of  this  contention. 
In  particular  reference  was  made  to  the  award  in  tlie  "Alabama" 
case,  and  a  citation  made  from  that  award.  It  reads  as 
follows : — 

"  And  whereas  prospective  earnings  cannot  properly  be 
made  the  subject  of  compensation  inasmuch  as  they  depend 
20  in  their  nature  ufion  future  and  uncertain  contingencies,  the  tri- 
bunal is  mianimously  of  opinion  that  there  is  no  ground  for 
awarding  to  the  United  States  any  sum  by  way  of  indemnity 
under  this  head." 

A  reference  to  the  proceedings  before  the  Geneva  Arbitra- 
tion will  show  that  as  a  matter  of  fixct,  although  this  general  pro- 
position was  laid  down  in  the  award,  a  sum  in  lieu  of  prospec- 
tive profits  was  allowed  to  the  Government.     By  reference  to  v. 
Protocol  No.    20,  it  will  appear  that  the  award   Avas  finally  ■(,'; 
made  up  on  1  be  basis  of  allowing  a  sum  equal  to  2,1  per  cent  '-' 

30  of  the  value  of  the  vessel  and  outfit  in  lieu  of  prospective 
catch,  this  sum  amounting  in  that  case  to  §!t88,000. 

Apart   from    this,    a    radical    distinction    exists    between  <;, 
tlie   "Alabama  "    case   and   the   present.     In  the  case  of  the  ^,' 
"Alabama"  it  was  not   contended   that   it  was  the  design  of 
the  British  Government  to  cause  the  loss  which  ci.sued,  nor 
was  sucli  loss  the  direct  result  of  the  negligence  witii  which 
they  were  charged. 

Here  the  loss  of  catch   was  the  necessary  and  immediate 
consequence  of  a  iiositive  act  of  the  United  States  Government 

40  intended  by  them  to  accomplish  the  very  damage  comidaitied 
of. 


It.  (if  tlir 

S..  I't.  u, 

I.  Srss., 


n.  Aw., 
.l.t,lS72-7;t, 

41,  p.  r,»L'. 


The  argument  against  giving  damages  for  the  prospective 
catcli  is  capableof  being  reduced  ud  alisitnlum.  Take  the  case 
of  a  vessel  found  on  sealing  grounds  with  every  appliance  for 
catching  seals  ;  the  seals  arc  there  to  lie  caught ;  it  must  be  an 
incorrect  projiosition  to  assert  that  the  person  who  illegally 
B  s— 4  26 


LOSS   OF   CATCH. 


'^ 


prevents  the  ship's  crew  from  catching  seals  shotihl  not  pay 
damages. 

Tlio  United  States  have  contended  tliat  the  tribunal  should 
give  only  the  value  of  the  ship  and  eipiipment,  and  possibly 
interest  ou  that  value.  Assume  then  a  case  quite  possible 
where  a  United  States  ship  illegally  takes  charge  of  a  sealer, 
tows  her  to  a  safe  harbour,  and  there  keeps  her  without  injury 
until  the  sealing  season  is  over.  According  to  the  argument 
put  forward  no  damages  for  loss  of  catch  could  be  recovered, 
because  it  may  he  uncertain  how  many  seals  the  vessel  would  n) 
have  caught  during  the  period  of  detention. 

This  proposition  is  laid  down  by  Mr.  Blodgett,  but  he  after- 
wards confutes  it  by  saying  : — 

"  While  it  is  conceded  that  there  has  been  some  relaxation 
of  the  rigid  rule  of  the  early  cases  in  p]ngland  and  the  United 
States,  in  regard  to  the  allowance  of  protits  as  an  element 
tor  the  award  of  damages  or  compensation,  it  is  undoubtedly 
still  the  rule  in  both  countries,  that  profits  can  oidy  be 
allowed  as  damages  where  they  arc  in  the  contemplation  of  the 
parties,  in  cases  arising  on  contract,  and  where  they  are  the  20 
necessary  and  proximate  result  of  the  injury  in  cases  of  tort, 
and  in  those  latter  cases  only  where  they  can  be  proven  or 
established  with  substantial  certainty." 

Here  '•  tue  necessary  and  proximate  result  of  the  injury  " 
may  be  established  "  with  substantial  certainty "  by  having 
regard  to  the  nature  of  the  season,  the  equipment  of  the 
vessel,  the  catch  of  other  seasons,  the  catch  of  similar  vessels 
in  the  same  season,  and  otherwise. 

In  this  connection  the  following  authorities  are  in  point  : — 

S..I  '»iiU  ..11        "  Compensation  may  be  recovered  for  sucli  proximate  losses  39 
ihiiM.ip-.'.  stii  at  are  also  the  natural  result  of  the  wrongful  act,  either  in  the 
ivU  _s.  ii.'_',  lit  ,m(-,,re  of  things,  or  in  the  light  of  special  circumstances  of 
which  the  wrong-doer  had  notice." 

"  In  order  to  be  compensated  a  consequential  injury  must 
be  such  a  result  of  this  injury  as,  according  to  common  expe- 
rience and  the  usual  course  of  events,  might  reasonably  have 
been  anticipated." 

''Absolute  certainty  is  not  required.  The  true  rule  on  the 
subject  is  announced  by  the  Supreme  Court  of  Michigan  in  a 

well-reasoned  case.     '  Sliall  the  injured  party be  allowed  to  An 

recover  no  damages  (or  merely  nominal)  because  he  cannot 
show  the  exact  amount  with  certainty,  though  he  is  ready  to 
show  to  the  satisfaction  of  the  jury,  that  he  has  suffered  large 
damages  by  the  injury?  Certainty,  it  is  true,  would  he  thus  at- 
tained ;  but  it  would  be  the  certainty  of  injustice Juries  are 

allowed  to  act  upon  probable  and  inferential,  as  well  as  direct 
and  positive  proof.  And  when,  from  the  nature  of  the  case, 
the  amount  of  the  damages  cannot  be  estimated  with  certainty, 
or  only  a  part  of  them  can  be  so  estinnited,  we  can  see  no 
objection  to  placing  before  the  jury  all  the  facts  and  circums-  cq 
tances  of  the  case  having  any  tendency  to  show  damages,  or 
their  probable  amount;  so  as  to  enable  them  to  make  the 
most  intelligible  and  probable  estimate  which  the  nature  of  the 
case  will  permit.  In  Satchwell  vs.  AVilliams,  I'helps,  J.,  said 
that  it  was  no  objection  that  the  defendant  could  only  state 


ll.iil.   -.   IIL'. 


Iln.l, 


17(1. 


LOSS  OF   CATOJI. 


27 


,'t 


Ilia  damage  approximately,  though  it  would  bo  to  show  that 
his  evidence  was  so  vague  and  uncertain,  that  the  court  could 
not  deduce  from  it,  that  the  defendant  had  sustained  any 
particular  amount  of  damage."' 

"  The  chief  difficulty  experienced  is  in  cases  of  prospective  ii.iii,  ^.  17-'. 
loss.  When  the  plaintifi' claims  compensation  for  consequences 
of  the  injury  which  he  has  not  yet  experienced,  he  must  [)rove 
with    reasonable   certainty   that   such    consequences   are    to 
happen  ;  and  compensation  is  not  to  be  given  where  there  is  a 

10  mere  conjectural  probability  of  future  loss.  Thejuryhasno 
right  to  allow  damages  for  mere  possibilities. 

"  Future  consequences,  which  are  reasonably  to  be  expected 
to  follow  an  injury,  may  be  given  in  evidence  for  the  purpose 
of  enhancing  tlie  damages  to  be  awarded.  But  to  entitle  such 
apprehended  consequences  to  be  considered  by  the  jury,  thoy 
must  be  such  as  in  the  ordinary  course  of  nature  are  reasonably 
certain  to  ensue.  Consequences  which  are  contingent,  specula- 
tive, or  merely  possible,  are  not  projier  to  be  considered  in 
ascertaining  the  damages.     To  entitle  a  plaintift'  to  recover 

20  present  damages  for  apprehended  future  consequences,  there 
must  be  such  a  degree  of  jjrobability  of  their  occurring,  as 
amounts  to  a  reasonable  certainty  that  they  will  result  from 
the  original  injury." 


And  again  he  says : — 

"This  'reasonable  certainty'  does  not  mean  absolute  cer- 
tainty, but  reasonable  probability." 

And  further : — 


Uiiil,  s.  173. 


"  But  the  fact  and  amount  of  future  loss  is  a  question  for  the  ii.id,  s.  172 
jury,  which  has  discretion  iu  estimating  it." 

30      Again  he  says  : — 

"The  allowance  of  proiits,  when  not  excluded  as  unnatural  11,1,1,  s.  174. 
or  remote,  is  wholly  a  question   of  the   certainty    of   proof. 
Wherever  there  is  an  interference  with,  or  withholding  of 
property,  or  breach  of  contract,  or  commission  ot  a  tort,  the 
gain  i)revente(l,  if  provable,  may  be  recovered." 

Ami  again  we  find  the  following : — 

"  The  general    rule   is,  then,  that  a  plaintitf  may  recover  ii,i,i,  „.  177. 
coinpcnsation  for  any  gain  which  he  caniiiake  it  appear  witli 
reasonable  certainty  the  defendant's  wrongful  act  prevented 

40  him  from  acquiring,  subject,  of  course,  to  the  general  prin- 
ciples as  to  remoteness,  compensation,  &c.,  already  stated. 
His  compensation  will  be  measured  by  the  most  liberal 
scale  which  he  can  show  to  be  a  proper  one.  Damages 
for  interruption  of  the  business  of  a  manufacturer,  tor 
instance,  may  be  measured  either  by  the  rental  value  of  the 
property  kept  unproductive,  or  by  the  protlts  of  manufacture 
lost  if  the  plaintiff  can  show  that  they  would  have  been  grea- 
ter than  the  rental  value.  The  questions  that  arise  in  the  cases 
are,  therefore,  questions  ol  the  sufficiency  of  proof,  and  it  is  to 

50  be  expected  that  the  courts  will  not  in  all  cases  agree  in  their 
intcr{)retation  of  facts  ;  but  the  decisions  show^  under  the 
circumstances,  a  surprising  degree  of  harmony." 

The  author  draws  a  distinction  between  the  damages  recover- 
able in  the  case  of  the  imi  'ediate  destruction  of  property  and 
cases  were  property  is  simply  improperly  detained.  At  the 
end  of  the  section  he  uses  the  following  words : — 


"  I5ut  although  in  this  class  of  actions  the  valuu  of  property 
destroyed,  with  interest  for  tlio  time  tlie  owner  was  deprived 


1 1  lid,  s.  17s. 


28 


LOSS   OK    CATCH. 


Il.id,  ^.  IS:'. 


n  Midi. 


\»A. 


..fit,  will  coiiipcni»ntc  liiin  (or  tiic  In.^s  if  no  siicciiil  or  cxtruor 
(linary  daiiiami'  occiiri'ed.  yet,  it  liic  iiijnry  not  mily  cnii.-^cd  a 
loss  (if  projuTty,  liut  also  other  [iroxiiiialc  loss,  fiirtlicr  c(iiii[H'n- 
Butioii  aliould  Ite  n'ivfii  to  that  extent." 

Af^ain  lie  says  : — 

"  Where  it  clearly  apfiears  that  the  defendant  lias  inter- 
rupted an  estahlishod  bnsinessfroni  which  tic  plaintitf  expected 
to  realize  profits,  the  ijlaintill'shonld  recover  coni|iensarii)ii  for 
whatever  profit  he  makes  it  reasonahly  certain  he  would  have 
realized.  Here  as  elsewhere  the  rpiostiou  is  one  of  fact,  whe-  10 
tiler  the  profit  can  he  proved  with  reasonahle  certainty.  In  an 
Illinois  case  the  court  said  : 

"'We  all  Unowthat  in  many,  if  not  all,  professions  and  call- 
ings, years  of  effort,  skill  and  toil  are  necessary  to  establish  a 
profitable  business,  ant?  that  wlien  estalilished  it  is  wortli  more 
than  capital.  Can  it  then  be  said,  that  a  party  deprived  of  it 
has  no  remedy,  and  can  recover  nothing  lor  its  loss  when  pro- 
duced by  another?  It  lias  long  been  well  recognized  law,  that 
wlieu  deprived  of  such  business  by  slander,  compensation  for 
its  loss  may  be  recovered  in  tliis  form  of  action.  And  why  20 
not  for  its  loss  by  tbis  more  direct  means?  And  ol  whtit  does 
tliis  Iocs  consist  but  the  jirofits  that  would  have  been  made  had 
the  act  not  been  performed  by  aiipellants?  And  to  measure 
such  damages,  the  jury  must  have  .-iome  basis  for  an  estimate, 
and  what  more  reasonable  than  to  take  the  profits  for  a  reason- 
able period  next  preceding  the  time  when  the  injury  was 
iuHicted,  leaving  the  other  party  to  show,  that  by  depression  in 
trade  or  other  causes,  they  would  have  been  less?  Nor  can  wo 
expect  that  in  actions  of  this  character,  the  precise  extent  of 
the  damages  can  be  shown  by  demonstration.  By  tbis  means  30 
they  can  be  ascertained  with  a  reasonable  degree  of  certainty.' 

"  Allison  vs.  v'handler,  the  leading  case  on  this  subject,  was 
a  case  where  the  defendant,  a  landlord,  wrongfully  ejected  the 
plaintiff,  his  tenant,  from  premises  where  he  was  established  as 
a  jeweller.  In  an  able  opinion  the  court  held  that  the  plaintiff 
was  entitled  to  damages  for  injury  to  his  business. 

"Tin;  defendant  broke  his  contract  not  to  compete  with  the 
plaintiffs  liusiness.  It  was  held  that  the  plaintiff  might  reco- 
ver compensation  for  the  piMfit  he  had  lost,  to  be  ascertained 
by  comparing  the  amount  his  business  actually  fell  short  of  40 
what  he  might  have  done,  with  the  business  done  by  defen- 
dant. (I'eltz  V.  Eichell,  tJ2  Mo.  p.  171.)  Where  the  injury 
complained  of  was,  that  the  defendants  bad  invited  the  plain- 
tiff's servants  to  dinner  and  induced  them  to  leave  him,  the 
injurious  conse(|uence  complained  of  was,  that  the  j>laintiff 
had  lost  the  profits  of  the  sales  of  pianos  for  two  years  ;  and 
this  was  held  not  to  bo  too  remote,  although  the  servants  were 
not  hired  by  the  plaintiff  for  any  definite  period,  but  worked 
by  the  piece.  Richard.-on  •!.,  remarked  :  'Tiio  damages  he  is 
entitled  to  receive  from  the  defendants  is  not  necessarily  to  be  oO 
confined  to  those  servants  he  might  have  in  his  employ  at  the 
time  they  were  so  enticed,  or  for  the  part  of  the  day  on  which 
they  absented  themsolvesfrom  his  service  ;  but  he  is  entitled  to 
recover  damages  for  the  lost  sustained  by  their  leaving  him  at 
that  critical  period.'  (Gunter  v.  Astor  4  Moore  p.  12)." 

At  section  4ti  the  same  author  [loints  out  that  the  dilliculty 
in  estimating  in  money  the  amount  of  any  head  of  damage  is 
no  ground  for  disallowing  it  : — 

"The  chief  objei'tion  urged  against  the  allowance  of  com- 
pensation for  mental  suffering  is  that  it  is  not  capable  of  being  (JO 


LOSS    OF   (!AT(!1I. 


20 


I 


OHtimatod  in  nioiiov  ;  Imt  that  iirijmiuiit  niifjlit  as  well  Itc 
urn'cd  against  awarding;  (laniajfos  (orpliysical  pain  '  Woiiiid- 
ini^  a  man's  t('elinj,'s,' said  Hecklcy,  (3..I.,  '  i:<  as  niiicli  actual 
dainaifo  as  breakin.u- his  limbs.  Tlio  ditt'erencd  is,  that  ono  is 
internal  and  the  other  external ;  one  mental,  the  other  physi- 
cal ;  in  cither  case  the  dainajj;e  is  not  measurable  with  exact- 
ness. There  ean  lie  11  closer  aiiproxinnition  in  eHtimatin<?  the 
damaife  to  a  limh  than  to  the  h'elings,  hut  at  the  last  the 
amount  is  indetinite.' 
10  "  That  the  amount  oi'damaLfes  allowable  in  such  a  ease  as 
this  is  not  capable  of  easy  and  accurate  mathematical  compu- 
tation is  freely  conceded,  but  that  should  not  be  a  sutHcient 
reason  for  refusing  oi'  defeating  the  right  of  action  a'together, 
for  the  same  objection  may  be  urged  with  the  same  force  in  all 
cases  where  mental  and  bodily  sulfering  are  treated  as  proper 
elements  of  damage.'' 

"  The  Supreme  (Jourt  of  Nrassachusetts,  in  a  carefully  reasoned 
o])inion,  has  ell'ectually  disposed  of  the  objection." 


Again  : — 

lO  "  Prospective  damages  are  frequently  recovered  in  actions 
for  personal  injuries.  Thus  in  such  actions  the  plaintiff  may 
recover  for  permanent  loss  of  earning  power,  which  includes 
both  the  pecuniary  loss  he  has  sustained  and  that  he  is  likely 
to  sustain  during  the  remainder  of  his  life,  or  for  future  pain 
or  permanent  physical  injury.  In  an  action  for  loss  of  service. 
The  plaintiff  may  recover  compensation  for  probable  future 
loss  during  the  continuance  of  the  term  of  service." 


Iliid,  H.  Mi. 


The  same  rule  is  to  he  found  in  Sutherland,  on  Damaires ; 

Profits  of  spccidl  contract :  — 


30  "  The  liability  for  the  profits  which  would  have  resulted  smi,,  HmihI, 
from  the  performance  of  a  contract  is  co-extensivo  with  the  ^ "'•'■''■ '" 
power  to  contract;  and  the  government  is  liable  therefor  to 
the  same  extent  as  an  individual.  The  right  of  a  party  to 
recover  the  jirofits  he  would  have  made  in  fulfilling  a  contract 
depends  solely  upon  the  fault  of  the  other  ["arty  to  it,  and 
lilaintifPs  aliility  to  show  that  the  profits  claimed  were 
reasonably  certain  to  have  been  realized  but  for  the  wrongful 
act  complained  of  It  is  not  an  insui)erable  objection  to 
their  recovery    that  they   cannot  be  directly  and  absolutely 

40  proved.  The  general  imcertainty  attending  human  life  and 
the  special  contingencies  as  to  its  duration  on  account  of  the 
physical  condition  of  an  individual  whose  rights  are  involved 
do  not  i)revent  the  recovery  of  damages  for  causing  his  death 
or  injuring  his  person.  An  agreement  by  one  person  to 
support  another  (hiring  life  is  an  entire  continuing  contract 
upon  the  total  breach  of  which  the  obligor  is  liai)le  for  full 
and  final  damages  estimated  to  the  time  the  person  who  was 
to  be  supported  would  probably  die.  It  is  the  constant 
practice  to  so  assess  damages  in  a('tion8  to  recover   for  per- 

50  soiiiil  injuries.  In  the  nature  of  things  where  performance 
has  been  prevented  the  proof  of  profits  cannot  be  direct  and 
absolute.  The  injured  party  must,  however,  introduce 
evidence  legally  tending  to  establish  damage  and  sufficient 
to  warrant  a  jury  in  coming  to  the  conclusion  that  the 
damages   they   find  have   been    sustained ;    but   no   greater 


T 


80 


LOSS  OK   CATCH. 


(lefjroe  of  corfaiiitv  in  tliin  proof  is  nuniirotl  tliaii  of  any 
otlier  tiict  wliicli  if*  owsontiaHo  l)o  t'staliliKliod  in  ii  civil  action. 
If  there  iH  no  more  cortain  method  of  arriving;  at  the  iiinoiint 
tlie  injnred  party  is  cntitleil  to  sulnnii  to  tlie  jury  tlie  parti- 
cular facts  which  have  tranapircil  ami  to  allow  the  whole 
Hituation  which  is  the  foundation  of  the  ilaiin  and  expectation 
ot  profit,  so  far  as  any  detail  offered  has  a  legal  tendency  to 
HUpjiort  such  claim." 
"'"I.  »■ '"  "■  Tii'fioiis  [ntdi'errncc  Willi    Biisiiir.is. — In   actions  for  torts, 

injurious  to  business,  the  extent  of  the  loss  is  provahle  by  the  10 
same  testimony,  and  recovery  may  he  had  for  suchas  is  proved 
with  reasonable  certainty  ;  it  is  enough  to  show  what  the  i)rofit« 
would  probably  have  been.  Certainty  is  very  desirable  in 
estimating  danniges  in  all  cases;  and  whore,  from  the  nature 
and  circumstances  ot  the  case,  a  rule  can  be  discovered  by 
which  adecpiate  compensation  can  be  accurately  measured,  it 
Hhoulil  be  a])plied  to  actions  ot  tort,  as  well  as  to  those  upon 
contract.  The  law,  however,  does  not  recpiire  impossibilities, 
and  cannot,  therefore  demand  a  higher  degree;  of  certainty  than 
the  nature  of  the  case  admits.  If  a  regular  and  established  20 
business  is  wrongfully  interrupted  the  damage  thereto  can  be 
shown  by  proving  usual  profits,  for  a  reasonable  time  anterior 
to  the  wrong  complained  of.  IJut  it  is  otherwise  where  the 
unsiness  is  subject  to  the  contingencies  of  weather,  breakages, 
delays,  etc.  Tliore  is  no  good  reason  for  reciuiring  any  higher 
degree  of  certainty  in  respect  to  the  amount  of  damages  than 
in  respect  to  any  other  branch  of  the  cause,  .furies  are  allowed 
to  act  upon  probable  and  inferential  as  well  as  direct  and  posi- 
tive proof.  And  when  from  the  luiture  of  the  case  the  amount 
of  the  damages  cannot  be  estimated  with  certainty,  or  ordy  a  30 
l)art  ot  hem  can  be  so  estimated,  no  objection  is  perceived  to 
placing  "fore  the  jury  all  the  facts  and  circumstances  of  the 
case  havi.ig  any  tendency  to  show  damages,  or  their  probable 
amount,  so  as  to  enable  them  to  make  the  most  intelligible  and 
accurate  estimate  which  the  nature  of  the  case  will  permit. 
This  should,  of  course,  be  done  with  such  instructions  and 
advice  from  the  court  as  the  circumstances  may  recpiiro,  and 
as  may  tend  to  i)revent  the  allowance  of  such  damages  as  may 
bo  merely  possible,  or  too  remote,  or  fanciful  in  their  character 
to  be  safely  considered  as  the  result  of  the  injury."  40 

Again,  referring  to  Allison  and  Chandler  supra. 

ii'.te  "  In  this  case  Christiaucy,  J.,  said  :  '  Since,  from  the  nature 
of  the  case  (one  of  injury  to  business),  the  damages  I'amiot  be 
estimated  with  certainty,  and  there  is  risk  of  giving  by  one 
course  ot  trial  less,  and  by  the  otlier  more,  than  a  fair  com- 
pensation— does  not  sound  policy  to  say  nothing  of  justice  — 
require  that  the  risk  should  be  tlirown  upon  the  wrong-doer, 
instead  of  the  injured  party?  However,  this  cjuestion  may  he 
answered,  we  cannot  resist  the  conclusion  that  it  is  better  to 
run  a  slight  risk  of  giving  somewhat  more  than  actual  com-  50 
pcnsation  than  to  adopt  a  rule  which,  under  the  circumstances 
of  the  case,  will,  in  all  reasonable  pr()babilit_y,  preclude  the 
injured  party  from  the  recovery  of  a  large  proportion  of  the 
damages  he  has  actually  sustained  from  the  injury,  though  the 
amount  thus  excluded  cannot  be  estimated  with  accuracy  by 
a  fixed  and  certain  rule.'  " 

In  this  note  also  many  other  English  and   American  autho- 
rities to  the  same  effect  are  cited. 
Again  : 

"'i'l-  ^- "-  "The  fact  that  the  value  of  a  contract,  or  tlie  advantage  to  gQ 

be  derived  from  it,  is  contingent — that  is,  that  the   expected 


til  1 1-  1"'T 


LOSS   OK    CATOII. 


81 


L'T". 


advniitajro  dopeiids  (Hi  tho  concurronw  of  circuiiistniieos  8iil>- 
Heqiiently  to  tniiiHiiiro,  iiiid  which  iiiuy  hy  posnihility  not  liap- 
pen,  in  not  an  iiirtiipomltle  ol))ection  to  rufovuring  of  (hiniufjos 
from  rtiicii  11  io8-t.  Tiiu  uhiince,  so  to  speak,  of  obtaining  tliat 
advantngo  by  iiorforniaiico  oft  he  contnict,  and  tlio  conjunction 
of  tliu  nci'it-ssary  mihHU(iiient  facts,  may  ho  vahnihlo.  Tho  mi- 
tiii'o  of  the  contingency  miisthcconsidorod.  If  it  is  purely  con- 
jectural, and  cannot  ho  reasomihly  anticipated  to  happen  in  tho 
usual  course  of  things,  it  is  too  uncertain.  Tliero  must  he  proof 
10  h'Uiilly  tending  to  show  and  suUicicnt  to  satisfy  tho  jury  that  if 
would  happen.  Tho  chance  tliat  a  father  would  pay  a  son's 
debt  lo  procure  his  release  from  custody,  lias  been  held  capable 
of  estimation." 

Tarletoii  vs.  M'Gawley  may  also  bo  cited  ; 

Tliis  was  nn  action  on  tlie  case.  Tho  declaration  charged  i, 
that  the  dcfendent  contriving  and  maliciously  intending  to  ''■ 
liindor  and  defter  certain  natives  from  trading  with  the  plain- 
tiff's ship,  with  force  and  arms,  tiretl  from  a  certain  other  ship 
at  a  canoe  filled  with  natives  and  killed  one,  whereby  the  said 
20  natives  of  tlio  said  coast  wore  deterreil  and  hindered  from 
trading  with  the  plaintiff's  ship  and  the  plaintiff  lost  their 
trade. 

It  will  bo  observed  tliat  unless  the  special  damage  alleged 
was  eufHcicnt  tho  wliole  action  would  fail  and  a  non-suit  mu8t 
liave  boon  granted. 

Lord  Kenyon  said  : 

"  This  action  is  brought  by  the  plaintiffs  to  recover  a  satis- 
faction for  a  civil  injury  which  they  have  sustained.  The  in- 
jury complained  of  is,    that  by  the  improper  conduct  of  the 

30  delieiidant  the  natives  were  prevented  from  trading  with  the 
plaintiffs.  The  whole  of  the  case  is  stated  on  the  record,  and  v 
if  the  parties  desire  it,  tlic  opinion  of  tho  court  may  hereafter 
bo  taken  whether  it  will  supiiort  an  action.  1  am  of  opinion 
it  will.  This  case  has  been  likened  to  cases  which  it  does  not 
at  all  resemble.  It  has  been  said  that  a  person  engaged  in  a 
trade  violating  the  law  of  the  country  cannot  support  an  action 
against  another  for  hindering  him  in  that  illegal  traffic.  That 
I  entirely  accede  to,  hui  it  does  not  apply  to  this  case.  This 
is  a  foreign  law  ;  the  act  of  trading  is  not  itself  immoral,   and 

40  a  jus  pusitivitm  is  not  binding  on  foreigners.  Tho  king  of  the 
country  and  not  the  defendant  sliouldhavo  executed  that  law. 
Had  this  been  an  accidental  thing,  no  action  could  have  been 
maintained,  hul  it  is  proved  tlua  the  difcndanl  liad  expressed  an 
inlention  not  to  permit  any  to  trade  until  a  debt  duejmn  the 
natives  to  hnnself  was  satisfied.  If  there  was  any  "court  in 
that  country  to  which  he  could  have  apiilied  for  justice  ho 
might  have  done  so,  but  lie  had  no  right  to  take  the  law  into 
his  own  hands." 

"Tho  plaintiff's  had  a  verdict,  and  the  parties  agreed  to  refer 

50  the  damages  to  arbitration." 

The  "  liisolulo"  : — In  this  case  a  French  fishina:  brisr  ofl-12  t„„.  p 

tons  employed  in  the  cod  fishery  ofi'  the   Banks  of  Newfound  ';?J'':"V"'" 
land,  came  in  colhsion  on  the  6th  of  July,  1881,  withaii  Italian  i'" 
barque,  and  in  consequence  of  the  collision  was  compelled  to 
put  into  port  for  repairs,  but  her  repairs  having  l)een  completed 
returned  to  the  fishing  ground  before  the  close  of  the  fishing 
season.     In  an  action  of  damages  instituted  on  behalf  of  the 


273. 


H2 


L08«  OP  PATCH. 


owiuTH  ol'  tlio  \>r'\n  iiijiiiiiHt  tlic  lmii|U(',  llie  Court  iiroiioniK'cd 
the  lpiir(|iu(  Holi'ly  to  liliiiin'  tor  tlic  .ollision  iiiid  ri'l'frii'<l  llic 
(|iiuritiuii  ot  iIiuiiu^of)  Id  tlic  Iki'irit^lnn'  anil  iiicirliiiiitK. 

Ill  giving  ITiH  jiidgiiu'iit  uii  this  rut'ei'oncu,  the  UugiHtrar 
gatd  : — 

"I'l.  I'  II-'-  "  A  Hiiiii  of  22,(»00  francs  was  allowotl  forlosHof  lishing.  Tlu' 
vi'Rsol  hud  II  crow  of  twenty  men  and  riglit  small  itoats,  it 
lioiiig  Iho  practict'  lor  tlu'  hoals,  with  two  nn'ii  in  oach  and  long 
lines,  to  Hiirroniid,  tiie  vessel  whilst  fishing.  An  ininu'iiso 
iiiiinl)er  of  Fri'iich  as  well  as  native  and  somewhat  .-mailer  10 
vessels  are  engaged  in  tlie  trade,  some  of  them  lai.  'ing  their  lish 
from  time  to  time,  and  others,  ineiuding  the  '  Kmma.'  taking 
o\erythiiig  they  eatcdi  to  Uordeaux,  receiving  a  Koiinty  for  so 
(h)ing  from  the  Kreneli  (iovernment.  'I'he  eod  fishery  opens 
hite  ill  Ajiril  and  ends  in  Xovemher.  Tiio  '  Kmma '  liad  left 
Dieppe  as  usual  ahout  the  middle  of  Mareli,  with  the  neees- 
sary  salt  to  prescr\e  the  tish  to  he  caught  hy  her,  going 
Htraight  to  St.  Pierre,  to  iiroeiire  herrings  as  halt  for  the  early 
tishing,  and  afterwards  ha\  ing  damaged  hei'  windlass  she  had 
returned  to  St.  i'ierre.  and  having  got  a  siipjily  of  liuit  tor  the  -0 
later  lishing  had  only  just  resumed  tishing  when  tlu^  eollision 
in  question  oceiirred.  At  the  close  of  the  season  she  proceeded 
to  iiordeanx  and  landed  and  sold  ;Ui,474  cod,  which  realized 
87,85.')  francs.  It  was  jiroved  tiiat  the  average  numher  offish 
caught  hy  other  vessels  in  those  seas  greatly  exceeded  that 
(luantity  and  that  uidess  that  was  the  case,  the  jirocecds  would 
not  cover  the  expenses.  The  registrar  and  men'hants  therefore 
came  to  the  conclusion  on  the  information  furnished  especially 
hy  the  defendants,  that  2:2,flOU  francs  should  he  allowed  as  (he 
loss  sustained  hy  the  interruption  to  the  fishing  occasioned  hy  30 
the  collision,  an  allowance  tor  demurrage  in  the  usual  way 
heing  inapplicahle  to  this  case." 

This  report  was  afKrmod  hy  the  Court. 

Sir  Itohert  I'hillimore  in  giving  judgment,  snid  : 

"  ]  do  not  think  I  need  further  trouhle  the  coinibel  for  the 
plaintitts.  Ixxiking  to  all  the  circumstances  of  this  case,  and 
to  those  authorities  which  have  heeii  referred  to,  and  toothers 
which  exist  and  might  have  hccii  cited  in  favour  of  the  jplain- 
tifl's,  and  having  read  Mr.  Cookclls  lajtes  on  the  case,  I  am  of 
ojtiiiion  that  I  ought  not  tc  interfere  with  the  report  of  the  40 
registrar,  and  I  therefore  dismiss  the  motion  with  costs.'" 

See  also  the  "Gleaner  "  A  spinall's  maritime  cases  vol.3,  N.S. 
58-2;als()tlie"  Argeiitino"  14  Ap.  Ca.  p.  ;)!!»;  als(,  Phillips /-.s. 
London  and  Xor!h-wcstern  Railway  Co.  0  C.  1*.  1).  i'80. 

Ill  the  Bay  Fortune  cases  the  United  States  claimed  against 
the  IJritish  Government  damages,  the  great  hulk  of  which  con- 
sisted of  jirohahle  catch  for  the  year  in  which  the  interruption 
took  place,  although  the  interruptions  extended  only  over  a 
period  of  one  day. 

The  claims  for  damages  aggregated  §105, 30.1  in    respect  ofrn 
twenty-two  v(.'sscls. 

The  ground  taken  was  thai  the  interference  with  certain  of 
the  vessels'  operations  (all  of  which  were  in  the  hay  awaiting 
catches),  affected    the   operations   of  the   whole   twenty-two, 


1,08S   OK    CATCH.  88 

iiiiiHiniu-h  m  tlio  itatfhos  liitorrorod  witli  would  liavo  loaded  the 
^yliolo  Huot. 

It  was  cluimiid  that  if  not  iiitorforud  witli  all   tho  vcBrtclrt 
inijjlit  liave  obtained  iiroUtahlo  curgoos. 

Four  voflrtolH  oiil}',  out   ot'  tho  fleet  of  twonty-two,  were 
actnall}'  tirihin^. 

Tho   hirgcBt   claim   aiii)earri   to   he   tliat    of  the   schooner  smtr  I'iiihtk, 
"  Wildlire,"  ««,30:>.8-'.     It  m  made  up  thus  :-  ^^^^  AmiH.'' 

Wages  of  cai>taiii  ai:d  crew §     028  57 

10  Insurance 570  00 

Ballast 58  00 

Lumber  and  cost  of  i)hitforms  and  stage..         70  87 
rrovisions 20133 


»  1,530  97 

The  hist  preceding  voyage  to  Fortune  Bay, 
January,  1875,  she  brought  back  a 
cargo  of  herring,  which  she  sold  for.... ^  6,414  70 

Tho  expenses  were 1,535  85 

1?  4,878  85 
20  Add  above 1,530  97 

Total $6,309  82 

The  smallest  formulated  claim  is  that  of  the  "  Isaac  Rich,' 
$2,401 .00,  made  up  a3  follows  :— 

Wages I  795  go 

Insurance 400  00 

Store  bill 213  71 

Salt 322  88 

^■«sh 103  23 

Bill  of  herring 120  22 

30  Cargo  of  trade i^o;52  25 

$2,986  09 
Sale  of  hnrring,  018  barrels  at  $2 1,836  00 

$1,150  00 
Tho  cargo   of  the   vessel  had  been  con- 
tracted  for  at  $3    per  barrel,  but  on 
account  of  delay  oidy  brought  $2,  being 
a  loss  of <)i^  QQ 

Full  cargo  would  have  been  1,200  barrels, 
but  on  account  of  disturbance  did  not 
40      obtain  but  918  barrels,  leaving  a  defi- 
ciency of  282  barrels,  which  would  have 
cost  $423  and  sold  for  $846,  a  loss  of...       428  00 

Total ij  2,401  09 

B   S — 5  R 


84  LOSS  OP  CATCU. 

The  claim  of  tho  schooner  "  Ilereward  "  is  made  up  as  fol- 
lows : — 

Outfit  for  voyage ^  l,i>00  00 

Wages  (four  months) 1,000  00 

Provisions 400  00 

Outfit  for  vessel,  fitting  out,  etc 400  00 

Insurance 600  00 

$4,'fm  00 

Less  part  of  outfit  returned 500  00 

«i3,800  00 
If  the  vessel  had  made  a  fairly  prosperous 

voyage  her  profit  would  have  been $  2,000  00 

e  5,800  00 

Less  small  amount  of  herring  brought  back 62  00 

8  5,742  00 

iisHlrvTlw"       '^^^  *^'"'™^  '^^^'^  ^^"'^*^  ^y  ^^^  payment  of  a  lump  sum 
p'.  74  7«.      '  amounting  to  about   two-thirds  of  the    sum   claimed,   and 

implying  the  consent  of  both  nations  to  the  principle  involved 

in  the  claim  for  catch. 


10 


INTEREST. 


It  is  subiDitted  that  the  indemnity  should  comprise  interest 
calculated  at  the  rate  current  in  British  Columbia,  on  the 
whole  amount  of  the  loss  or  damage  from  the  time  such  dam. 
age  was  suffered  to  the  expiration  of  the  six  months  allowed 
by  the  convention  for  the  payment  of  tlie  amount  awarded. 

In  8up|iort  of  this  proposition,  the  language  of  the  counsel 
for  the  United  States  before  the  arbitration  at  Geneva  may  be 
again  adopted  : — 

10      "The  case  of  the  United  States  desires  the  tribunal  to  ti„,  „r^,„„„„t 
award  a  sum  in  gross  in  reparation  of  the  losses  complained  "tci.n.vit, 
of;  and  the  counsel  request  this,  assuming  the  tribunal  shall  '''  ""^* 
be  fully  satisfied  that  the  said  losses  are  properly  proved  in 
detail,  and  that  the  sum  total  thereof,  as  claimed,  is  due  by 
Great  Britain. 

"  In  that  contingency  the  counsel  assume  that  interest  will 
be  awarded  by  the  tribunal  as  an  element  of  the  damage. 
We  conceive  this  to  be  conformable  to  public  law,  and  to  be 
required  by  paramount  considerations  of  equity  and  justice. 

20      "  Numerous  examples  of  this  occur  in  matters  of  interna- 
tional valuation  and  indemnity. 

"  Thus,  on  a  recent  occasion,  in  the  disposition  by  Sir 
Edward  Thornton,  British  Minister  at  Washington,  as  umpire, 
of  a  claim  on  the  part  of  the  United  States  against  Brazil,  the 
umpire  decided  that  the  claimants  were  entitled  to  interest  by 
the  same  right  which  entitled  them  to  reparation.  And  the 
interest  allowed  in  this  case  was  $45,077,  nearly  half  of  the 
entire  award  ($100,740). 

"  So  in  the  case  of  an  award  for  damages  by  the  Emperor 
30  of  Russia  in  a  claim  of  the  United  States  against  Great  Britain, 
under  the  treaty  of  Ghent,  additional  damages  were  awarded 
in  the  nature  of  damages  (interest?)  from  the  time  when  the 
indemnity  was  due.  In  that  case  Mr.  Wirt  holds  that, 
according  to  the  usage  of  nations,  interest  is  due  on  inter- 
national transactions. 

"  In  like  manner  Sir  John  Nicholl,  British  Commissioner 
in  the  adjustment  of  damages  between  the  United  States  and 
Great  Britain  under  the  Jay  Treaty,  awards  interest,  and  savs  : 
"  •  To  reimburse  to  claimants  the  original  cost  of  their  pro- 
40  porty,  and  all  the  expenses  they  have  actually  incurred, 
together  with  interest  on  the  whole  amount  would,  I  think, 
be  a  just  and  adequate  compensation.  This,  I  believe,  is  th*. 
measure  of  compensation  usually  made  by  all  belligerent 
nations  for  losses,  costs,  and  damages  occasioned  by  illegal 
capture.' " 

In  answering  this  argument  Sir  Roundall  Talmer,  for  Great  limi,  paiij. 
Hritaui,  referring  to  the  cases  under  the  Jay  Treaty  cited  by  the 
United  States  counsel  says  : 

"  Tli;3  iigain,  was  a  case  of  the  award  of  interest  on  n  prin- 
-jj  cipal  value,  actually  ascertained  and  proved  to  be  recoverable 

35 


86 


INTEREST. 


0|iini()iis 
Att(  ini-y 

<  il'lllllll, 

•J,  p.  •J.l. 


I'.  ;fi. 


by  appropriate  evidence,  in  respect  of  property  belonging  to 
citizens  of  the  United  States,  which  had  been  seized  and 
appropriated,  and  unjustly  detained,  and  (in  some  cases)  sold 
or  otherwise  disposed  of  for  their  own  benefit,  by  persons  acting 
under  the  public  authority  of  the  Crown  of  Great  Britain.  In 
both  these  essential  points  this  i)recedcnt  of  1704  stands  in 
direct  opposition  and  contrast  to  tlie  claims  now  before  the 
present  tribunal." 

This  remark  applies  exactly  to  the  claims  before  the  present 
commission  and  shows  that  the   Jay  Treaty   case  is  a  pre-  10 
cedent  in  point. 

The  arbitrators  at  Geneva,  on  the  reasoning  quoted  above 
decided  "  that  it  was  just  and  reasonable  that  interest  showed 
be  allowed  at  a  reasonable  rate." 

In  the  opinion  of  United  Scatci  Attorney  General  Wirt 
referred  to  in  the  above  extracted  argument  the  following  lan- 
guage is  used  : — 

"  Ist.  Is  interest  a  part  of  the  indemnity  awarded  by  the 
Emperor  ? " 

And  a  little  further  d'lW.' on  ■     >   .ane  page  : —  20 

"f         "After  the  most  deliberirc  eoi.i^Aiuration  of  all  the  argu- 
v,,i.  ments  which  have  been  urged  [To  and  con,  I  am  clearly  of  the 

opinion  that  intcreet  at  least  is  a  necessary  part  of  the  indem- 

nit}'  awarded  by  the  Emperor." 

And  at  page  31  he  makes  the  following  remarks  : — 

"  And  then  the  only  remaining  inquiry  is,  what  is  the  award  ? 
It  is,  that  the  United  States  are  entitled  to  a  just  indemnifica- 
tion for  the  slaves  and  other  property  carried  away  by  the 
British  forces,  in  violation  of  the  first  articles  of  the  treaty  of 
Ghent.  What  ia  just  indemnification  for  a  wrong?  Is  it  the  gQ 
reparation  of  the  one-half  or  two-thirds  of  that  wrong?  Is  it 
anything  legs  than  a  reparation  of  the  whole  wrong?  On 
these  few  simple  ideas  the  whole  question  turns.  If  an  injury 
is  justly  redressed  which  is  onlv  half  redressed  then  the  Brit- 
ish commissionir  is  right  ;  but  if  an  injury  ij  <<u]y  redressed 
when  the  redress  is  commen.surate  with  thj  wLole  extent  of 
the  injury,  then  ho  is  wrong.  Let  us  jiut  ;..si<l(  tiic  emphatic 
and  striking  word  just,  and  take  the  .'onl  ?n'!^ninification 
alone:  what  does  the  word  '  intl<.mnilur.ti( ':  (.lor-n?  Tiie 
saving  harmless  from  danger.  Is  tt.it  man  ,-;  vod  ''.armless  ^q 
from  danger  who  is  left  to  bear  one-hait  »..f  thr-  'ti age  him- 
self? The  question  seems  to  me  too  plain  for  discussion.  The 
British  commissioner  (Sir  John  Nicholl),  who  composed  part 
of  the  board  under  the  seventh  article  of  the  treaty  of  1794, 
seems  to  have  entertained  a  very  different  opinion  on  this  sub- 
ject from  his  countryman  who  is  now  sitting  to  execute  the 
Emperor's  award.  Ilis  words  are  :  'to  reimburse  to  claimants 
the  original  cost  of  their  property,and  all  the  oxperises  they  have 
actiiA'.ly  incurred,  togetlier  with  interest  n  tho  whole  amount, 
would  I  think,  be  a  just  and  adoquai'  .'ipcjy -ation.  This,  50 
I  believe,  is  the  measure  of  compensa;  0  ':uiiily  made  l);y  all 
belligerent  nations  for  losses,  costs  and  (!;t',.::^ -^  occiisioncd  by 
illegal  captures.'  N  a\  ,  at  the  time  of  (lie  v  rongs  now  u.ider 
consideration,  we  were,  as  to  Great  Britain,  tieutrals  and 
friends;  e  •  stood  p.'/ectcd  by  the  most  sacred  of  all  instru- 
ments— a  i''e;i!y  of  peace. 

"In  viol  itioi>  of  th;  icMty,  tho  slaves  and  other  property  of 
America. I  jit'-ens   ..oro  carried  away  in  tho  year  1815,  and 


INTEREST. 


87 


liave  been  detained  from  them  ever  since.     They  have  thus 
lost  the  use  of  this  property  for  eleven  years.     Is  the  meagre 
return  of  the  avi^rage  vahie,  at  the  iime  the  slaves  and  proper 
ty  were  thus  taken  from  them,  a  just  indemnification  of  the 
whole  wrong?    That  the  act  of  taking'  away  the  property  was 
a  wrong,  is  no  longer  a  question.     Whatever  disposition  there 
may  be  to  make  it  a  question,  it  has  been  settled  by  the  tribu- 
nal of  the  party's  own  choice,  and  car    no  longer  be  made  a 
question.     The  iirst  act  of  dispossession  being  thus  established 
10  to  be  a  wrong,  is  the  continuance  of  that  dispossession  for  eleven 
years  no  wrong  at  all?    Is  it  consistent  with  that  usage  of 
nations  which  Sir  John  NichoU  recognizes,  to  redress  an  act  of 
wrongful  violence  by  the  return,  at  any  distance  of  time,  of  the 
naked  value  of  the  article  at  the  date  of  the  injury  ? 

In  the  case  of  Ekins  vs.  East  India  Company,  it  was  decided 
that  interest  should  be  allowed  for  a  ship's  cargo  taken  by  the 
defendant ;  and  this  being  done  in  the  Indies,  Indian  interest 
was  allowed,  (about  12  per  cent,)  deducting  the  charge  of 
return  from  the  Indies. 

20      It  was  objected  : 

1.  That  the  value  of  the  ship  and  cargo  being  inicortain,  it  i.*'«';' ^y'l- 
could  not,  in  the  nature  or  it,  carry  niterest,  but  trom  the  time  vol.  i,  i«(,'i- 
it  was  ascertained  by  the  jury. 

2.  That  the  plaintiff  had,  at  this  time,  rested  thirteen 
years  upon  his  own  bill,  and  therefore  to  allow  him  Indian 
interest  would  be  to  make  him  a  gainer  by  his  own  delay. 

But  the  court  decided  : 

"  If  a  man  has  my  money  by  way  of  loan,  ho  ought  to  answer 
interest;  but  if  he  detains  my  money  from  me  wrongfully,  he 
3Q  ought,  a  fortiori,  to  answer  interest.  And  it  is  still  stronger 
where  one  by  wrong  takes  from  me  either  my  money  or  my 
goods  which  I  am  trading  with,  in  order  to  turn  them  into 
money. 

"Therefore,  let  the  defendants  pay  interest;  and  this  being 
transacted  in  the  Indies,  where  the  person  who  acted  by  autho- 
rity under  them,  and  for  their  use,  must  be  presumed  to  liave 
made  the  common  advantage  that  money  yields  there,  the 
company  must  answer  the  interest  of  that  country." 


;t!iri  (!. 


This  case  was  affirmed  on  appeal  to  the  House  of  Lords. 


'_',  lil'dWUM 

I'iU'liaitirnta- 

in      Referring  to  interest,    Mr.  Da  vies  in  his  introduction  to  his  'y  c-Mi's, 
'*'-'  °    .  p.  ;w2. 

notes  on  treaties  says  : — 

"  According  to  the  usage  of  nations  it  is  a  necessary  part  of  inn;".  X'>U' 
a  just  national  indemnillcation."  liaVi,!!' 

Notes  (111 
Tii'iititis,  piigu 

au. 


Applying  to  the  present  ease  the  principle  underlying  the 
above  quoted  authorities  that  interest  is  due  as  an  element  of 
indemnity,  it  follows  that  such  interest  must  be  calculated  at 
the  current  rate  at  the  place  where  the  injury  was  committed 
to  make  the  indemnity  complete. 

The  principle  is  the  more  applicable  in  cases  where  private 
50  individuals  have  been  injured  by  a  nation,  they  having  no 
means  of  pressing  their  claims. 


MMHMUMHHMI 


IS    GREAT    BRITAIN'S    CLAIM     AFFECTED    BY 

CITIZENS  OF  THE  UNITED  STATES  HAVING 

AN  INTEREST  IN  ANY  OF  THE  VESSELS  ? 


Attention  has  already  been  drawn  to  the  varying  grounds 
upon  which  the  United  States  defended  their  seizure  of  the 
vessels  in  question. 

The  United  States  did  not  until  after  the  signing  of  the 
Treaty  of  February,  1892,  either  directly  or  indirectly,  through- 
out their  long  diplomatic  correspondence  with  Great  Britain' 
or  otherwise,  refer  to  the  fact  of  any  of  the  vessels  seized  10 
being  owned  by  its  citizens  as  affecting  its  responsibility. 

In  presenting  their  case  at  Paris,  they  treated  and  design- 
ated the  vessels  seized  or  interfered  with,  as  British  vessels, 
and  made  no  submission  involving  the  question  now  •  .itier 
consideration,  although  as  early  as  1889  they  were  ir  posses- 
sion of  the  facts  upon  which  at  a  later  date  they  based  their 
contention  that  citizens  of  the  United  States  were  interested 
as  owners  in  some  of  the  vessels. 

It  cannot,  therefore,  be  presumed  that  at  the  time  of  the 
Treaty  of  1892  the  question  was  in  the  minds  of  its  framers,  20 
or  that  the  words  "  its  citizens  "  which  formed  part  of  Article 
8  of  said  treaty  had  been  intentionally  used,  as  was  contended 
by  Mr.  Blodgett  in  his  argument  at  Paris. 

Great  Britain  in  the  negotiations  which  followed  the  Award 
was  careful  to  close  the  door  to  any  such  argument  as  that 
above  referred  to,  and  insisted  on  other  words  being  used  in 
the  Claims  Convention. 

The  following  despatch  shows  how  this  change  occurred  in 
the  drafting  of  the  Convention  : — 


Mr.  URESHAM   TO  SIR  .JULIAN  PAUNCEFOTE. 


30 


"  Department  op  State, 

"Washington,  August  16, 1894. 

"Dear  Sir  J'  ian: — I  have  your  note  of  the  15th  instant  in 
relation  to  the  prc^'Osed  convention  for  the  settlement  of  the 
Behring  Sea  claims. 

"Referring  to  the  doubts  raised  by  Her  Majesty's  Govern- 
ment as  to  the  restrictive  effect  of  the  words  '  British  subjects,' 
in  the  fourth  recital  of  Article  I.  of  my  counter  draft,  you 
state  that  you  mentioned  to  Lord  Kimberley  I  had  given  you 
the  assurance  that  the  Government  of  the  United  States  40 
'  desired  to  satisfy  all  claims,  the  payment  of  which  were  justly 
due  by  international  law;'  and  you  then  say  that  you  have 
received  a  reply  from  His  Lordship  '  to  the  effect  that  Her 
Majesty's  Government  take  note  of  that  assurance  and  waive 
their  objection  to  tiie  words  in  question.' 

"While  I  am  not  of  the  opinion  that  the  language  of  your 
note  is  ambiguous,  it  is  perhaps  advisable,  in  order  to  avoid 
any  possible  misunderstanding  hereafter,  to  say  that  in  re- 
ferring to  international  law,  it  was  not  my  intention  either  to 

38 


'^ 


UNITED  STATES   OWNERSHIP. 


89 


enlarge  or  restrict  the  language  of  the  proposed  Convention, 
but  it  was  my  intention  to  convey  the  idea  that  the  commis- 
sioners  would,  in  considering  its  terms,  bo  governed  by  the 
principles  of  international  law.  Such  I  understand  to  be  your 
interpretation  of  my  meaning,  as  expressed  in  your  note ;  but 
out  of  abundant  caution  I  desire  to  avoid  any  possible  ground 
for  the  inference  that  anything  may  have  been  said  by  mc 
with  the  intention  of  modifying  or  controlling  the  Convention 
by  assurances  given  outside  of  it. 

"  If  convenient  to  you,  I  shall  be  pleased  to  meet  you  at 
this  department  at  11  o'clock  a.ra.  to-morrow,  for  the  purpose 
10  of  signing  the  Convention. 

"  I  remain,  etc., 

W.  C^  GKKSHAM. " 
Article  I.  of  the  Claims  Convention  now  reads  as  follows  i — 

"Article  I.  The  high  contracting  parties  agree  that  all 
claims  on  account  of  injuries  sustained  by  persons  in  whos  • 
behalf  Great  Britain  is  entitled  to  claim  compensation  from 
the  United  States."  etc.,  etc. 

Article  3  contains  the  provision  that  "the  government  of 

the  United  States  shall  have  the  right  to  raise  the  question  of 

20  its  liability  before  the  Commissioners  in  any  case  where  it 

shall  be  proved  that  the  vessel  was  wholly  or  in  part  the 

actual  property  of  a  citizen  of  the  United  States." 

No  allusion  it  will  be  noticed  is  made  to  the  interest  which 
any  United  States  citizen  may  have  in  the  result  of  the  voyage 
or  in  the  cargoes.  The  inquiry  of  the  Commissioners  is  clearly 
limited  to  the  consideration  of  the  ownership  of  the  vessels. 

The  position  of  Her  Majesty's  Government  from  the  incep 
tion  of  this  controversy,  has  been  to  hold  the  United  States 
liable  for  all  the  damage  done  by  their  authority  to  vessels  on 
the  high  seas,  which  were  carrying  the  British  flag  and  duly 
""  documented.  And  it  is  submitted  that  under  no  principle 
known  to  the  Law  of  Nations,  can  it  be  open  to  the  United 
States  in  time  of  peace  to  go  behind  the  flag  or  register. 

It  will  be  observed  that  if  on  the  one  hand  the  United 
States  reserved  the  right  to  raise  the  question  of  such  owner- 
ship, Great  Britain  on  the  other  hand,  although  consenting 
that  the  question  might  be  raised,  did  not  at  any  time  admit 
that  the  consequences  claimed  by  the  United  States  would 
follow  from  the  proof  of  the  facts  alleged. 
^"  What  then  is  the  protection  aftbrded  by  the  national  ll.ag  to 
a  ship  on  the  high  seas  in  times  of  peace  ? 

When  Great  Britain  urged  the  mutual  concession  of  right 
of  search  to  ascertain'  if  a  suspected  vessel  was  engaged  in  the 
slave  trade,  the  United  States  refused  to  assent.  Referring  to 
the  Treaty  of  Washington,  1842,  Woolsey  observes:  "Tho 
United  States  admit  of  no  right  of  search  of  vessels  sustaining 
their  national  character.  If  then  a  British  cruiser  boards  a 
50  vessel  of  the  United  States  whose  papers  are  right  no  search 
can  be  made  notwithstanding  the  most  flagrant  suspicion." 

President  Tyler's  message,  February  27,  1843  (Wharton, 
par.  327,  p.  134)  contains  the  following  sentence  :  "  Denying 
as  we  do  all  colour  of  right  to  exercise  any  such  general  police 
over  the  flags  of  independent  nations.' 


40 


UNITED   STATES   OWNERSHIP. 


t.r.  V..I.  (1, 


tliiil  XH. 


Ibid  ;«7. 


|lM(l%i'.l 


In  1843,  Mr.  Webster,  writing  to  the  President  on  February 
26th,  says  : — 

"  That  the  British  Government  made  no  pretension  to  interfere 
in  any  manner  wliatever,  either  by  detention,  visit,  or  search, 
with  vessels  of  the  United  States,  known  or  believed  to  be 
such ;  but  that  it  still  maintained,  and  would  exercise  when 
necessary,  its  own  right  to  ascertain  the  genuineness  of  any 
flag  which  a  suspected  vessel  might  bear  ;  that  if,  in  the 
exercise  of  +his  right,  either  from  involuntary  error,  or  in  spite 
of  every  precaution,  loss  or  injury  should  bo  sustained,  a  prompt  iq 
reparation  would  be  aftbrded  ;  but  that  it  should  entertain, 
for  a  single  instant,  the  notion  of  abandoning  the  right  itself, 
would  be  quite  impossible." 

In  his  despatch  to  Mr.  Everett,  March  28th,  1843,  he  says  : — 

"  Lord  Aberdeen,  in  his  note  to  you  of  the  20th  December, 
says  :  'The  undersigned  again  renounccR  as  be  has  already 
done  in  the  most  explicit  terms,  any  righ  on  the  part  of  the 
British  Government  to  search  American  vessels  in  time  of 
peace.  The  right  of  search,  except  when  specially  conceded  by 
treaty,  is  a  pure  belligerent  right,  and  can  have  no  existence  20 
on  the  high  seas  during  peace.  The  undersigned  apprehends, 
however,  that  the  right  of  search  is  not  confined  to  the 
verification  of  the  natii  lulity  of  the  vessel,  but  also  extends  to 
the  object  of  the  voyage  and  the  nature  of  the  cargo.  The 
sole  purpose  of  the  British  cruisers  is  to  ascertain  whether  the 
vessels  they  meet  with  are  really  American  or  not.' " 

And  again  : 

"Nor  can  the  United  States  Government  agree  that  the 
term  'right'  is  justly  applied  to  such  exercise  of  power  as  the 
British  Government  thinks  it  indispensable  to  maintain  in  30 
certain  cases.  The  right  asserted  is  a  right  to  ascertain 
whether  a  merchant  vessel  isjustl}'  entitled  to  the  protection  of 
the  flag  which  she  may  happen  to  have  hoisted,  such  vessel 
being  in  circumstances  which  render  her  liable  to  the  suspicion, 
first, that  she  is  not  entitled  to  the  protection  of  the  flag;  and, 
secondly,  that  if  not  entitled  to  it,  she  is,  either  by  the  law  of 
England  an  English  vessel,  or,  by  the  provisions  of  treaties 
with  certain  European  powers,  subject  to  the  supervision  and 
search  of  British  cruisers."  *  *  * 

'•  If  visit,  or  visitation,  be  not  accompanied  by  search,  it  ^q 
might  well  be,  in  most  cases  merely  idle.  A  sight  of  papers 
may  be  demanded,  and  pai>crs  may  be  produced.  But  it  is 
known  that  slave  traders  carry  false  papers  and  different  sets 
of  papers.  A  search  for  other  papers,  then,  must  be  made 
where  suspicion  justifies  it,  or  else  the  whole  proceeding 
would  be  nugatory.  In  suspicious  cases  the  language  and 
general  '.ppearance  of  tiie  crew  are  among  the  means  of 
ascertaining  the  national  character  of  the  vessel.  Tiie  cargo 
on  board,  also  indicates  the  country  from  which  she  comes. 
Her  log-book  showing  the  iirevious  course  and  events  of  her  5Q 
voyage,  her  internal  iitnient  and  equipment,  are  all  evidences 
for  hor  or  against  her,  on  her  allegation  of  character.  These 
matters,  it  is  obvious,  can  only  be  ascertained  by  rigorous 
search. 

"  It  may  be  asked,  if  a  vessel  may  not  be  called  to  show 
her  papers  why  does  she  carry  papers?  No  doubt  she  may  be 
called  upon  to  show  her  papers ;  but  the  question  is  where, 
when,  and  by  whom  ?  Not  in  time  of  peace,  on  the  high  seas, 
where  her  rights  are  equal  to  the  rights  of  any  other  vessel, 
and  where  none  has  a  right  to  molest  her.     The  use  of  her 


■  it 


UNITED   STATES   OWNERSUIP. 


41 


papers  is,  in  time  of  war,  to  prove  her  neutrality  when  visited 
by  hellii^ercnt  .Tuisers,  and  in  both  peace  and  war  to  show  her 
national""  character  and  tho  lawfulness  of  licr  voyage  in  those 
ports  of  other  countries  to  which  she  may  proceed  for  purposes 
ol'  trade." 

And  further  on  : 

"At  the  same  time,  the  government  of  the   United  States  Works  o^f^^^^^ 
fully  admits  that  its  Hag  can  give  no  immunity  to  pirates,  nor  t,.;!.  vd. «, 
to  any  other  than  to  regularly  documented  American  vessels."  i«K":f4i- 

10      Mr.  Cass,  United  States  Secretary  of  State,  says,  writing  to 
Mr.  Dallas,  in  185(t:— 

"  This  country  is  desirous  of  the  extinction  of  the  slave 
trade,  and  is  employing  a  larger  force  for  that  purpose  in  pro- 
portion to  its  navid  means  "^tlian  any  other  power  whatever. 
JJut  it  has  other  great  interests  upon  the  ocean — the  immunity 
of  its  Hag,  the  protection  of  its  citizens,  and  the  security  of  its 
commerce— which  it  does  not  intend  to  put  to  hazard  by  per- 
mitting the  exercise  of  ai!"  foreign  jurisdiction  over  its  mer- 
chant vessels". 

20      Woolsey  in  his  work  on  International  Law  says  in  reference 
to  the  above  : — 

"This  discussion  took  place  between  1841  and  1843.    Since  Woolwy  in- 
then,  in  1858,  the  British  Government  having  stationed  cruisers  I'^'p!'';^!. 
near  Cuba,  for  the  purpose  of  preventing  the  slave  trade  \yith  ."-J. 
that  Island,  certain  American  vessels  were  visited  on  suspicion, 
and  loud  complaints  arose.     The  Senate  of  the  United  States, 
thereupon,  passed  the  following  resolution  :     That  Ammean 
vessels  on  the  high  seas  in  t he  time  of  peace,  bcarin;)  the,  American 
flag,  remain  under  the  jurisdiction  of  the  country  to  which  they 
30  belong ;   and  therefore,  any  visitation,  molestation,  or  detention 
of  such  vessel  by  force,  or  by  the  exhibition  of  force,  on  the  part 
of  a  foreign  fower  is  in  derogation    of  the   sovereignty  of  the 
United  States. 

"  From  the  explanations  which  have  since  taken  place  it  does 
not  appear  that  the  British  Government  was  disposed  to  deny 
the  right  which  this  resolution  imi)lies.  Knowing  and 
believing  slavers  to  have  an  American  nationality,  it  has,  at 
least  since  1842,  disclaimed  the  right  to  detain  then.,  and 
40  finding  them  to  bo  American,  upon  examination  of  their 
papers"  it  admits  that  it  cannot  search  them  without  a  iolation 
of  international  law." 

It  will  bo  observed  that  in  these  negotiations,  and  in  the 
correspondence  relating  to  the  subject,  Great  Britain  did  not 
attempt  to  claim  more  than  [lermission,  in  case  of  suspicious 
circumstances,  to  visit  a  vessel  flying  the  United  States  Hag 
taking  the  risk  of  searching  the  vessel  without,  at  the  same 
time,  claiming  to  be  absolved  from  liability  should  ihe  vessel's 
papers  be  geiuiine,  and  her  nationality  bo  thereby  established. 


u  s — 6 


-JJHJJ 


42 


UNITED   STATES    OWNERSHIP. 


Sni.  Kx.  I).. 
N<i.  liT,  .■>:( 

('iillt;irsK,  :i 
srss.  |t.  2(». 


Ilml  p.  11. 


President  Grant,  in  his  message,  1873,  referring  to  the 
" Virginius"  said: — 

"  Wiien,  tlierefore,  slie  left  the  port  of  Kingston,  in  October 
last,  under  the  flag  of  tlie  United  States,  she  would  appear  to 
have  had,  as  against  all  jiowers  exiept  the  United  States,  the 
riglit  to  fly  that  flag,  and  to  claim  its  protection,  as  enjoyed  by 
all  regularly  documented  vessels  registered  as  part  of  our  com- 
mercial marine. 

"  No  state  of  war  existed,  conferring  u{)on  a  maritime  power 
the  right  to  molest  and  detain   ujion  the  high  seas  a  docu- 10 
mented  vessel ;  and  it  cannot  be  pretended  that  the  '  Virginius' 
had  placed  herself  without  the  pale  of  all  law  by  acts  of  piracy 
against  the  human  race. 

"If  her  papers  were  irregular  or  fraudulent,  the  ott'ence  was 
one  against  the  laws  of  the  United  States,  justifiable  oidy  in 
tlieir  tribunals." 

It  was  only  because  of  the  particular  words  of  the  agree- 
ment between  Spain  and  the  United  States  that  the  registra- 
tion of  the  "Virginius"  was  declared  fraudulent.  The  United 
Spates  Attorney  General  expressly  stated  in  giving  his  opinion  20 
that  if  it  was  not  for  the  terms  of  the  agreement  referred  to 
the  fraudulent  registration  would  have  been  no  ground  for 
seizure. 

The  opinion  of  the  Attorney  General  of  the  United  States 
in  that  case  is  found  in  Ex.  Doc,  No.  30,  II.  R.,  vol.  8,  1875- 
74,  p.  208. 

In  the  very  year  of  the  first  seizures,  in  Behring  Sea,  Mr. 
Bayard,  United  States  Secretary  of  State  wrote  to  the  British 
Ambassador  in  the  case  of  the  "  L.  M.  Merritt"  (a  United 
States  ship)  as  follows : — "  By  the  Law  of  Nations  as  it  is  30 
understood  in  this  department,  the  citizens  or  subjects  of  a 
particular  country  who  are  owners  of  a  ship,  are  entitled  to 
carry  on  such  ship,  when  at  sea,  the  Hag  of  such  country  ; 
and  such  flag  is  to  be  regarded  by  all  foreign  sovereigns  as 
the  badge  of  nationality." 

The  British  Minister  in  connection  with  that  case  had  called 
attention  to  the  inconvenience  arising  at  British  ports  in  the 
cases  of  vessels  ov.'ijed  by  United  Staces  citizens  but  not  regis- 
tered as  United  States  vessels. 

The  protection  aflbrded  by  the  flag,  is  involved  in  the  corres-  40 
pondcnce   in    1891 : — contained     in    Vol.   5.    U.    S    pp.   776, 
778,  827,  842,  002,  904,  iiOO,  U08,  001),  912 

After  the  award  Mr.  Carter,  one  of  the  counsel  at  Paris 
for  the  United  States  Government,  in  discussing  the  regula- 
tions, wrote  as  follows  : 

"  If  it  should  turn  out  that  the  regulations  have  destroyed 
the  proiits  of  pelagic  sealing,  or  redmed  them  toso  low  a 
point  as  to  afford  little  tenijitation  for  the  Canadian  and 
American  vessels  to  engage  in  it,  their  flrst  resort  will  be  to 
seek  the  protection  of  another  flag;  and  this  may  easily  be  50 
obtained  unless  all  the  Maritime  Powerso  liould  he  induced  to 
adopt  and  enforce  the  regulations." 

Mr.  Bayard  wrote  to  .Mr.  Gresham  November  1,  1893, 
suggesting  diplomatic  corresi)ondence  with  powers  other  than 


% 


■i 


UNITED   STATES   OWNEKSIIIP. 


48 


Groat  Rrit ail  1  "lest  the  use  of  their  Hags  might  bo  obtained 
by  the  Holicitation  of  fur-seal  hunters  from  the  United  States  or 
Groat  Britain  and  her  colonies." 

See  also  the  correspondence  between  Mr.  Gresham  and  ihe  S;n.  Kx.  Doc. 
United  States  Minister  at  Tokio.  ki<«-'.  ««<■»«., 

pa^fs  4,5,  -17 

The  commander  of  the  United  States  Navy   in    Behrmg  mi.i  ."io. 
Sea  proposed  in  1894  to  issue  tlie  following  instructions  touching 
the  regulations  in  force  respecting  United  States  and  English 
vessels  : — 

10  "  It  is  not  to  be  believed  that  any  friendly  power  would 
permit  its  flag  to  be  used  as  a  cover  for  the  further  perpetration 
of  such  wrongful  acts." 

*  *  *  * 

"  Should  you  fall  in  with  a  sealing  vessel  flying  any  flag  other 
than  the  American,  or  the  English,  or  claiming  to  belong  to 
any  other  country,  or  producing  papers  in  proof  of  such  claim 

*  *  *  * 

you  will  proceed  to  warn  him  not  to  seal  anywhere  within  the 
limits  specified  in  the  President'.s  proclamation. 

*  *  *  * 

"  Any  such  vessel,  previously  warned,  found  to  have  been 
engaged  in  sealing  within  the  limits  referred  to,  whether  he 
20  has  accepted  a  license  or  not,  you  will  seize,  &c.,  &c." 

He  quickly  received  orders  to  cancel  such  instructions  : 

"  Revoke  immediately  your  circular  letter  of  May  28,  No, 
14.  Closely  confine  self  to  instructions  from  the  department ; 
seize  under  the  award  only  United  States  vessels  and  British 
vessels.  Do  not  interfere  with  the  vessels  of  other  nation- 
ality if  liolours  and  papers  are  regular,  &c.,  &c." 

From  the  foregoing  authorities  it  is  abundantly  clear  that 
the  flag  gives  a  national  character  to  the  ship,  and  that  when 
on  the  high  seas  in  time  of  peace,  all  on  board  are  as  much 
30  entitled  to  protection  as  if  they  were  on  the  soil  of  the  nation 
whose  flag  is  at  the  mast  head  and  that  the  question  as  to 
whether  foreigners  shall  be  allowed  to  own  registered  vessels 
of  another  nation  and  carry  its  flag  is  exclusively  within  the 
province  of  that  other  nation  and  of  its  municipal  laws. 


The  vessels  in  question  were  all  duly  documented  as  British 
ships. 

They  were  registered  as  British  vessels  and  carried  their 
certificates  of  ragistry  duly  executed  by  competent  authority. 
The  following  is  a  succinct  statement  of  the  law  relating  to 
40  British  ships  : — 

"  It  may  be  convenient  here  to  explain  briefly  what  is  meant 
by  the  words  '  registry '  and  '  clearance,'  and  what  are  the 
duties  of  the  officers  empowered  to  register  ships,  and  of  the 
officers  of  the  customs  in  respect  to  granting  clearances. 

"  'Registry'  signifies  tlie  recording,  in  a  book  kept  for  that 
purpose,  of  the  name  of  a  ship  which  the  owner  desires  to  have 
recognized  as  a  British  ship,  together  with  certain  particulars 
composing  a  general  description  of  the  ship. 

"  The  etfoct  of  registry  is  to  entitle  the  ship  to  use  the  British 

50  flag   and    to   assume   the    British   national   character.       The 

conditions  necessary  for  obtaining  registry,  in  the  case  of  a  ship 


44 


UNITED   .STATES   OWNEKSIIII', 


not  alreiulv  registoretl,  are  tlio  prodiictioii  to  tlio  llej^istriir  ot 
a  cortiticate  l)y  the  builder,  in  a  form  [irt'scrilunl  by  law,  autl  of 
a  declaration  (also  in  a  Iire8i'rii)ed  form)  tbat  tbo  sbipis  Mritisii 
owned." 

See  Instructions  to  llogistni"   of  Sliii)))ing,  pii,  7,  12,  14,  16, 
16,  17,  26  (1854-1880). 


The  registration  of  the  vessel  confers  natioiuil  character. 
Honey  v.   Buchanan,   16  i'atcrs,  21'}  Crispo  v.    Kelly,    16 
Wallace,  628. 

The  "  Lodonia,"  Orabbe,  271.  Tiie  '  Martha  Washington,'' 
15L.  Rep.  N.  S.  22.  10 


Mi' 


Nationality  of  private  vessels  is  evidenced  by  tlag  and  papers. 
Ilall.  Int.  Law,  1S90,  p.  101  and  see  Wharton,  409,  already 
quoted  in  discussing  the  subject  of  visit  and  search. 

In  the  case  of  Catlett  and  Keith  rs.  The  Pacitic  Insurance 
Company  (reported  in  1  Paine's  Circuit  Court  Reports,  i)age 
594),  it  is  decided  that  the  register  only  need  be  on  board 
during  a  period  of  universal  peace  in  compliance  with  the 
warranty  of  national  character. 

Judge  Thompson  states  the  question  as  follows :  £0 

"  The  next  inquiry  is,  whether  the  assured  have  showan 
compliance  with  the  implied  warranty  in  the  policy,  that  the 
'  Sphinx  '  was  an  American  vessel.  That  she  was  American 
built,  and  owned  by  American  citizens,  is  fully  proved,  so  far 
as  parol  proof  may  be  admissible  to  establish  the  fact,  that  the 
vessel  was  American  property.  The  testimony  of  the  captain 
is  full  on  this  subject. 

"  But  it  is  said  that  this  warranty  not  only  implies,  that  the 
vessel  was  American  property,  but  that  she  was  duly  docu- 
mented as  such,  so  as  io  show  her  national  character.  It  was  oq 
intimated  by  one  of  the  counsel,  that  other  documents  than  the 
register  were  necessary  for  this  purpose,  but  it  was  rot 
distinctly  pointed  out  what  those  documents  were  ;  and  the 
objection  to  this  extent  has  not  been  urged  by  the  other 
counsel.  And  I  understand  it,  therefore,  to  be  conceded  that 
an  American  register,  if  on  board,  would  have  been  a  com- 
pliance with  this  warranty  ;  and  I  am  not  aware  of  any  other 
document  that  could  have  been  required.  There  being  a  state 
of  uni/ersal  peace,  and  no  treaty  provisions  applicable  to  the 
voyage,  the  register  was  all  that  could  be  necessary  to  show  40 
the  national  character  of  the  '  Sphinx .'  No  question  of  neutral 
or  belligerent  rights  could  arise." 

The  certificates  of  registry  and  of  ownership  in  times  of 
peace  cannot  be  questioned  or  impeached  by  a  foreign  power. 

No  foreign  power  can  be  permitted  to  inquire  into  or  deter- 
mine their  validity. 

"  A  certificate  under  the  authority  of  the  United  States 
must  be  taken  by  foreign  powers  as  genuine,  and  can  be  im- 
peached by  them  only  by  application  to  the  Government  ofthe 


United  States.  This  has  been  lield  as  to  naturalization  certi- 
ficates (supra,  §  174  a)  ;  and  the  same  jirinciple,  as  was  held 
in  the  '  Virginius  '  case  (supra,  §  <}27),   applies  to  papers  cer- 


50 


UNITRD    STATBB   OWNRRSHIP. 


45 


titying,  niiilor  Mn*  authority  of  the  ITiiitcfl  Stiitos,  that  tlio  vissscl 
li()l(liii,<r  tliem  is  ii  vessel  ot' the  Uiiitod  States.  It'siidi  papers 
are  tVainliileiit,  tiie  parties  turgiiijL,'  or  wroiittt'iiily  usinif  them 
are  Iial)lo  to  piuiislimeiit  in  tiie  Uuiteil  States  ;  and  the  United 
States  will  not  permit  them  to  he  em[)loyed  as  a  hasis  of  n 
claim  ajjainst  t'orcie;Ti  powers.  But  the  llnite<l  States  must  he 
tiie  sole  judge  of  their  validity,  so  far  as  concerns  proceedings 
on  the  high  seas,  No  foreign  |)o\ver  can  be  permitted  to  deter- 
mine as  to  sucli  validity."     Supra,  §§  326  ff. 

10      The  same  priueiitlo  is  involved  in  the  case  of  naturalization 
certiticates. 

"  While  the  decisions  concerning  the  hinding  force  of  a 
record  of  naturalization  make  it  difficult  to  go  behind  the 
record  ;  at  the  same  time,  whenever  the  Government  is  called 
upon  for  its  interposition  in  a  foreign  state  on  behalf  of  any 
person  claiming  to  be  a  naturalized  citizen,  the  question 
whether,  under  all  the  facts  presented  by  him,  intervention 
should  be  accorded  is  always  open  for  consideration." 

'  Mr.  Fish,  Secretary  of  State,  to  Mr.  Moran,  Feb.  16,  1877. 
MSS.  Inst.,  Portugal.' 
20  "  It  certainly  is  not  competent  for  the  Department  of  State, 
either  by  itself  or  through  its  delegated  authority  in  the  com- 
mission (United  States  and  Spanish  Commission),  to  go  behind 
a  judicial  decision  of  a  court  of  law,  such  as  is  a  certificate  of 
naturalization." 

'Mr.  Evarts,  Secrotarv  of  State,  to  Mr.  Durant,  Mar.  7, 
1879.     MSS.  Dom.  Let.'" 

A  certificate  of  naturalization  as  a  citizen  of  the  United 
States  cannot  be  impeached  for  fr.'^  id  before  any  International 
30  Conmiission. 

Under  an  agreement  in  1870-71  between  the  Unite<l  States 
and  Spain,  the  Spanish  Government  was  permitted  in  an 
inquiry  "to  traverse  the  allegation  of  American  citizenship 
and  thereupon  competent  and  sufficient  proof  thereof  will  be 
required." 

Referring  to  the  agreement,  Mr.  Blaine,  in  his  despatch  to 

Mr.  Hamlin,  wrote  that  "  it  merely  pc  mits  Spain  to  traverse 

the  fact  of  naturalization  and  does  not    lermither  to  go  beliind 

the  certificate  of  naturalization,  and  disprove  the  fact  of  the 

40  five  years  residence." 

Under  the  la  ivs  of  England  and  consistently  with  the  Law 
of  Nations,  foreigners  r,-,.>.y  be  shareholders  in  a  company  own- 
ing British  ships. 

Regina  v.  A  maud,  0  Q.  B.,  804. 

No  authority  is  required  in  su[)port  of  the  following  propo- 
sitions : — 

A  British  ship  may  be  hypothecated  to  a  foreigner. 
Foreigners  m.ay  charter  British  ships. 
Foreigners  may  hold  a  Bottomry  Bond  upon  a  British  ship. 
50      Foreigners  may  be  mortgagees  of  British  ships. 


A  mortgagee  is  not  an  owner. 

"  Except  as  far  as  may  be  necessary  for  making  a  mortgaged 
ship  or  share  available  as  a  security  for  the  mortgage  debt, 


4fi 


UNITKD   STATUS   OWNERSHIP. 


thu  mortiijiijfoo  slmll  not  liy  mason  oC  tliu  niort<in,<re  l)o  deomod 
tho  owner  of  tlio  »hip  or  sliiiro  nor  slmll  tlio  mortgagor  lio 
(leoniod  to  Imvo  coasod  to  lio  tlio  ownor  theri'or." — Kitchon  r. 
Irvino  (18  •»).  28  L.  J.,  q  |{.  4f].  Williams  v.  Allrtop  (IStil) 
30  L.  J.  Ch.  358. 

"  The  mortgagiH'  liua  no  rcsponsihilitv  as  owiior."  \Vel)8tor's 
works,  Vol.  3,  p.  14H.    iSpt'ocli,  April,'l824,  "The  TarifK" 

Even  if  tlio  t'vidonce  showed  widoh  is  not  admitted,  that 
there  was  an  atti'm[>t  on  the  part  of  certain   United  States 
citizens  to  use  tlie  names  of  Uritisli  subjects  as  owners  of  vos-  10 
sels  held  for  their  lienelit,  such  an  attempt   would   //).s()  farli) 
render  such  vessel  forfeit  to  tlic  Crown  of  Great  Hritain. 

The  "Annandalo,"  2.  P.D.  218. 

"Tlio  Sceptre,"  (187t5)  35  L  T.  429. 

R.  V.  Sebo-g,  L.R  I.,  C.C.R.,  262. 

The  Merchants'  Shipping  Act,  1804  (a  consolidation  of 
previous  Acts),  Sec.  6',\  provides  for  the  forfeiture  of  the  ship 
for  use  of  national  flag,  &c.,  when  owned  in  whole  or  in  part 
by  a  person  not  (lualified 

Special  procedure  is    found  in  Sec.  78  to  enforce  this  for-  20 
feiture  : 

"  For  the  purpose  of  enforcing  these  statutory  forfeitures, 
any  ship  wliolly  or  in  part  liable  thereto  may  bo  seized  and 
detained  by  any  commissioned  ollicer  on  full  pay  in  the  mili- 
tary or  naval  service  of  I'  Majesty,  or  any  JJrifisli  officer  of 
Customs,  or  any  British  'lar  officer,  and  may  be  brought 

by  tlie  same  for  adjudicf  fore  the  Court  of  Admiralty  in 

Kngland  or  Ireland,  or  any  court  having  Admiralty  jurisdiction 
in  ller  Majesty's  Dominions." 


EFFKCT  OF  DOMKULE  ON  NATIONALITY. 


Rofereiice  haa  nlrciuly  been  made  to  the  reservation  by  the 
United  States  in  the  Convention  of  the  riglit  to  nuHO  the  ([Uos- 
tion  of  its  iiiii)ility  "  in  any  case  where  it  sliail  bo  proved  that 
the  vessel  was  wholly  or  in  part  the  actual  property  of  a 
citizen  of  the  United  States." 
10  It  has  also  been  shown  that  in  time  of  poacn  no  other  nation 
but  tliat  whose  register  is  used  and  Hag  carried  is  entitlcid  to 
go  behind  such  Hag  or  register. 

It  is  further  submitted  that  if  there  was  any  occasion  to  go 
into  the  evidence  adduced  and  received  subject  to  objection,  in 
connection  with  the  ownership  of  any  of  the  vessels  in  ques- 
tion by  citizens  of  the  United  States,  such  evidence  would  in 
no  way  avail  the  United  States  or  siipi)ort  their  contention. 

It  appears  that  in  the  cases  of  the  "Onward"  and  the 
"  Favourite  '  although  the  legal  title  to  the  schooners  was 
duly  vested  in  British  subjects,  yet  they  had  become  the  jiro- 
perty  ot  a  commercial  firm  carrying  on  business  in  British 
Columbia,  and  were  operated  as  a  part  of  the  general  trading 
20  business  of  the  partnership.  One  of  the  members  of  this  firm 
was  Alexander  .McLean,  a  naturalized  citizen  of  the  United 
States. 

In  the  case  of  the  "  Black  Diamond  "  No.  5,  and  the  "  Alfred 
Adams"  the  title  was  in  a  British  subject,  but  the  vessels 
were  operated  for  the  benefit  of  a  trading  firm  at  Victoria, 
composed  of  the  owner  and  one  Alexander  Frank,  who  was 
a  native  born  citizen  of  the  United  States. 

In  each  of  those  cases  tiie  alleged  United  States  citizens  were 
residents  of,  and  were  the  holders  of  other  property  in  the 
80  province  of  Mriti.sh  Columbia,  and  had  been  such  for  several 
years  prior  to  the  seizures  in  question. 

In  the  case  of  the  "  Tathfinder  "  the  schooner  was  owned 
by  and  registered  in  the  name  of  a  British  subject,  but  one 
Bechtel,  who  was  a  native  born  citizen  of  the  United  States, 
had  purchased  a  half  interest  in  the  profits  of  the  sealing  voy- 
ages of  the  vessel. 

Bechtel  was  a  man  of  family,  residing  at  thi  city  of  Victoria, 
which  had  been  his  home  for  many  year.-",  where  he  had  also 
acquired  a  large  amount  of  real  and  pcr.TOnal  i,ro[)erty,  and 
40  where  (.2  was  carrying  on  the  busi.iess  of  hotel-keeper,  and 
was  engaged  in  other  commercial  operations  of  importance. 
He  became  a  naturalized  British  subject  in  1892. 

No  mention  need  be  made  of  the  vessels  in  which  it  is  alleged 
that  Boscowitz  and  Daniel  McLean  were  interested,  as  it  is 
contended  on  behalf  of  Great  Britain  that  no  facts  were  given 
in  evidence  which  afford  any  ground  for  describing  these  per- 
sons as  United  States  citizens. 

47 


m 


48 


EFFECT   OF   DOMICILE   ON    NATIONALITY. 


''Mio  quostion  ia,  aro  the  United  States  liable  to  pay  compoii- 
aatior.  to  iiront  Hritain  in  respect  of  the  iiuUreet  interest,  it' 
any,  which  it  may  be  decidecl  was  held  in  such  vessels  by  the 
persons  above  described  ? 

It  is  obvious  that  the  wording  of  the  Treaty  has  not  settled 
the  j)oint.  The  parties  to  tlie  controversy  have  agreed  that 
the  question  may  be  raised.  They  have  not,  by  the  terms  of 
the  Treaty,  declared  what  consoqueneos  shall  follow  the  proof 
of  the  facts  indicated  above. 

The  proposition  must,  tliorofitro,  be  determined  by  reference  10 
to  the  principles  of  intei'iiationa!  law,  and  the  usage  prevailing 
among  nations  under  similar  conditions. 

The  award  of  the  Paris  Tribunal  has  conclusively  establish- 
ed tluit  the  injui'ie;!  complained  of  wer<'  the  residf  of  an 
illegal  attempt  on  the  part  of  the  United  States  to  enforce  the 
provisions  of  their  munici[ial  laws  against  vesseU  owned  as 
above,  wliile  they  were  navigating  the  high  seas. 

Tiie  facts,  therefore,  are  that  persons  born  or  naturalized  in 
the  United  States,  or  commercial  firms  of  which  they  were 
members,  domiciled  and  lawfully  carrying  on  trade  in  Uritisli  *J0 
dominions,  have  been  deprived  of  property  there  held  by  them 
as  a  consequence  of  the  illegal  action  of  the  United  States. 
Further,  the  autliorities  previously  cited  at  [)p.  1(!-IS  show  that 
tlic  loss  suffered  by  those  persons  has  been  occasioned  through 
the  invasion  by  the  United  States  (.overnmcnt  of  Britisli 
territory  and  the  I'onunission  there  ol'  the  wrongs  complaineci 
of 

Who  then  is  entitled  to  claim  compensation  for  I  lie  injuries 
so  inflicted  V 


WlmliiiiV  1 1 
tirlKitioll.'il 
l.im    |liK"-l. 
•.'nil  Ivl.  S,r. 
L'-.'ll,   |..  ,V.S, 

(iiititin^^  l'tt> 

lirlll     Alililll' 

tliH.I  .niiMial 


Tnternatioiial  law  recognizes  States  oidy  in  siieb  a  contro- 30 
vcniy.     The  injuries  di)ne  to   individuals  under  such  lircums- 
tiinces  are  deemed  to  beaime(l  at  the  sovereignty  of  the  nation 
in  which  tln'y  I'esidc  and  should   be   taken    up  and  prosecuted 
as  a  matter  of  national  roneern. 

On  this  point    in  Wharton's  International    Law  Digest   the 
following  occurs : — 

"The  claims  presented  to  the  I'Vench  Commission  are  not 
l)rivate  claiins  but  governmentnl  claims,  growing  out  of  inju- 
ries to  private  citizens  or  their  propi'rty.  intlicteil  by  the 
( ioveiiMueiit  agiiinst  \\bicli  they  are  presented.  As  between  40 
-  the  I'liileil  States  and  the  iMtizen,  the  claim  may  in  sonu'  sense 
lie  reiiarded  as  private,  but  when  the  t'hiini  is  t,d<en  up  and 
pressed  diploiniitically,  it  is  as  again^st  the  foreign  (iovernment 
a  national  claim. 

"Over  such  claims  the  prosecuting  (iovi'rnment  has  full 
control  ;  it  may,  as  a  matter  of  ]iure  right,  relnse  to  presi  iit 
them  at  all  ;  it  may  surrender  them  or  compromise  them 
withotu  consulting  the  claimants.  Si>veral  instances  where 
this  has  been  (h)ne  will  occur  to  yon,  notably  the  case  of  the 
so-called  '  l"'rcnch  spoliation  claims.'  The  rights  of  the  citizi'U  AO 
f(U'  diplomatic  redress  arc  as  agiiinst  his  o\\  n  not  tht  fort'ign 
(iovernment.  For  the  claims  within  its  jmisdiition  (he  com- 
mission stands  in  the  place  ol  the  diploiiiatic  departments  of 


,^f 


EFFECT   <)l"    nOMICII.H   ON'    NATtONAUTY. 


49 


tlic  two  coiiiiti'iL'9,  ii!i(l  tlic  rosiicctivo  agoiits  and  counsoi  repro- 
BCiit,  not  tho  cliiininnts,  hut  tlioir  reBpot-tive  UovcninientH, 
#         #         #  Tho  t'onimission  is  not  n  judicial  tni)unal 

adjudging  private  rights, hut  an  intornalionai  trihunal  adjudg- 
ing national  rights."' 

l!y  a  treaty  hot  ween  tlie  (Jueen  of  Great  Britain  and  tlio 
Emperor  of  Chi:ui,  tiie  Kniperor  agreed  to  pay  the  Hritisli 
Government  the  sum  of  §8,000,000,  on  a.vount  ofdeh*^  due  to 
liritif'li  suhjeetrf  iVoni  rertain  (Miinese  merehants  who  liad 
10  heeome  insolvent,  heiiig  laigely  iiidehted  to  Uritish  merchants. 
Tlie  money  having  heeii  rcceiveil  hy  thi:  I'ritish  Government,  ii 
petition  of  right  was  iiled  hy  one  ot' the  persons  on  whose  hchalf 
a  claim  had  heen  made,  and  in  discussing  tlie  position  which 
tlie  sovereign  occupies  in  negotiations  such  as  that  which 
rcsidted  in  the  payment  of  the  indemnity,  ('ockhurn,  Chief 
Justice,  said  : — 

'•  Tho  notion  that  the  Ijueen  of  this  country,  in  receiving  a  iiu. 
sum  (if  money  in  order  to  do  justice  to  some  of  her  suhjeets,  to  ,',''|', 
whom  injustice  would  otherwise  he  done,  hecomes  the  agent  I'n-J. 
20  of  those  suhjeets,  seems  to  me  really  too  wild  a  notion  to  re(iuir<i 
a  siii<rlc  word  of  ohscrvation  heyond  that  ol'  emphatically  con- 
denming  it." 

Bhu'khuru,  J.,  says  :— 

"  r  certainly  am  not  aware  of  any  authority  whatever  in  the  iim 
iMiglish  law  that  has  ever  put  the  Sovereign  in  siuh  a  position 
when  exorcising  an  act  as  the  hody  politic, — "To  use  the  old 
phrase,  "the  sovereign  in  the  capaiuty  of  the  hody  politic 
ext'rcising  an  act  of  prerogative."  To  say  that  the  Queen  waa 
the  agent  of  any  ihusou  seems  to  mo  to  hi^  utterly  unfounded 
30  upon  any  authority  whatever.  There  aiv  plenty  of  old  cases 
niiou  which  the  dignity  of  the  Grown  is  exaggerateil  hoyoiid 
measure.  T'lis  has  heen  carried  to  such  an  extent  that  1  should 
eertaiidy  jjause  or  hesitate  whether  I  would  follow  it  at  tho 
present  date  to  the  full  extent  :  hut  tohringdown  Her  Majesty 
to  the  sitinition  ol  it  i)eing  said  of  her  that  in  making  a  treaty 
of  peace  with  the  l'",mpci'(U'  of  China,  she  was  an  agent  for 
evervhody  who  had  a  claim  against  the  Kmpcror  of  China  is 
totally  without  authority." 

It  would  seem,  therefore,  that  in  every  case  like  the  present, 
40  the  ilainis  should,  and  can  only  ho  made  through  tho  medium 
of  tho  sovereign  in  whose  territory  the  injury  has  arisen,  and 
ill  acoordance  with  the  terms  of  the  ("(Uiventior.  luider  which 
this  Comtni^■8ion  sits,  should  bo  presented  hy  Groat  Britain  on 
behalf  of  'lersons  for  whom  that  milion  is  entitled  to  claim 
eompo;  Hon;  that  is  on  behalf  of  those  wlio  as  of  right  Tnay 
claim  her  proloctiou  ov'or  tlu'ir  persons  and  [iroporty. 

In  considering  what    (icrsons  nniy  tlaini  this  protection  in 

the    preinib'is,    roleronco    should    he    made   to  iv   well    s(>ttled 

principle   of  international    law,    \\/..:   that,    by    reason    of   his 

50  domicile,  an  alien    aciiuires  the   (piality  of  a  subject   of  the 

country  in  which  he  niaki's  his  honu'. 

\V'alk(>r,  in   his  hook  on   tho  Science  of  Tntermitional  Law, 
speaking  upon  this  point  says  : — 

"So  much  lor  the  geographical  boumlarios  oi  a  state.     What 
of  the  porsoiuddofmition  ol  the  state  people  V     The  inhabitants 
I)  s— 7  tt 


lulilli'C.  Vl 
I.Mlrrll   1 
I).   Ml,  |.. 


I  |,.  i!i:i. 


60 


EFFECT   OF   DOMIOIT.E    ON    NATIONALITY. 


V:ittil.  \<-„, 

•>.  ell.  8.  M'l'. 
104. 


r. 

S.  Si 

11.  Kx 

1). 

K'.    '.'1 

•4li.  •_> 

I'- 

s,  14 

US. 

conn. 

of  a  country  at  any  time  may  comprise  four  classes  of  indivi- 
duals. There  are  citizens,  and  tliese  either  hy  birth  (siibdili 
nati)  or  by  naturali/ation  {sahiliti  duli)  :  there  may  be  denizens, 
being  foreigners  resident  in  the  country  and  enjoying  special 
privileges  by  grant  of  the  territorial  sovereign,  albeit  not 
raised  to  the  status  of  full  citizens  ;  there  may  be  domiciled 
aliens,  being  foreigners  resident  in  the  country,  and  resident 
with  an  intention  ot  more  or  less  permanent  sta}',  and  there 
may  be  mere  casual  visitors. 

"  But  members  of  all  these  classes,  however  differentiated  by  \Q 
municipal  regulation,  are  in  view  of  internatioiuil  law  alike,  in 
general,  subjects  of  the  state  government  so  long   as  they 
maintain  their  local  position. 

"  The  rule  fixing  citizenship  upon  any  individual,  the  rule, 
that  is,  ascribing  nationality,  is  matter  tor  Municipal  law.  In 
international  lav  locality,  not  nationality,  is  the  all  important 
test  of  character." 

Again,  the  implied  obligation  of  obedience  to  the  laws  of 
the  country  of  his  domicile,  devolving  upon  an  alien  by  reason 
of  his  residence,  casts  upon  that  nation  the  correlative  duty  of  20 
protection  in  every  case  in  which  the  rights  of  such  foreigner 
are  invaded  or  his  property  (U'stroycd  by  the  wrongful  acts  of 
any  other  state. 

"  The  sovereign  ought  not  to  grant  an  entrance  into  his  state 
for  the  purpose  of  drawing  foreigners  into  a  snare  ;  as  soon  as 
he  admits  them,  he  engages  to  protect  them  as  his  own  subjects, 
and  to  afford  them  perfect  security  as  far  as  deiiends  on  him. 
Accordingly,  we  see  that  every  sovereign  who  has  given  an 
asylum  to  a  foreigner,  considers  himself  no  less  offended  by  an 
injury  done  to  the  latter,  tlian  hewouhl  be  by  an  act  of  violence  30 
committed  on  his  o\\  n  subject." 

Commenting    on    the    above   ([notation    in    Worth    Case? 
Rayner,  J.,  says : — 

"  This  priuciiile  of  international  law  is  recognized  as  a  part 
of  the  municipal  law  of  Kiigland  and  of  the  United  States. 
The  English  courts  have  decidi'd,  again  and  again,  that  not 
only  is  a  foreigner  resident  in  iMigJand  entitled  to  the  protection 
of  her  laws  to  his  person  and  property  ;  but  even  in  the  case 
of  an  alien  enemy,  if  he  (piietly  and  peaceably  obeys  her  laws 
and  performs  tlie  duties  reiiuired  of  him,  he  his  not  only  ^q 
entitled  to  the  protection  of  herlaw.->  in  sueing  for  his  rights  in 
her  courts,  but  be  his  entitled  to  protection  to  his  person,  even 
fis  nijitinst  the  bmd  of  his  nativitij." 

It  is  true  that  in  iho  distribution  of  the  fund  awarded  by 
the  Geneva  arbit'.ition,  the  eliiims  of  IJritish  subjects  were 
not  considered  proper  nnitters  for  compensation,  but  this 
decision  was  arrived  at  with  great  doubt,  and  the  reasons  on 
which  it  is  based  give  force  and  emphasis  to  the  considerations 
above  set  forth. 

It  was  there  stated  that  in  the  Alabama  case,  Great  Britain  50 
was  not  charged  with  any  act  of  hostility  to  the  United  States, 
but  with  culpable  negligence,  in  that  she  had  not  enforced  the 
provisions  of  her  own  nnmicipal  laws  against  her  own  subjects 
in  her  own  territory.  The  Court  of  CMaims,  therefore,  without 
attempting  to  apply  any  principle  of  interiuitional  law  to  the 


EFFECT   OF    DOMICILK    ON    NATIONALITY. 


51 


facts  bofore  thorn  liold  that  the  theory  ol' the  conveiitioii  under 
which  tlic  award  was  made,  deniuiidcd  that  under  the  peculiar 
circnmstancos  of  tlio  case,  (ircat  Britain  should  not  be  called 
upon  to  compensate  her  own  subjects,  though  at  the  same 
time  it  was  stated  as  an  incontrovtM'tible  proposition  that  that 
power  would  bo  bound  to  indemnify  her  own  citizens  resident 
in  the  United  States,  if  the  damage  had  been  the  result  of  an 
act  of  direct  hostility  against  tliat  nation. 

Discussing  the  subject  in  the  case  of  Lord  vs.  the  United 
10  States,  Rayner  J.,  said  : — 

#     #     #     "  And  if  the  contlict  had  been  directly  between  r.s.  Sen.  v.x 
Great  Britain  and   the    United  States,  and  there  had  been  an  i>"i' j-'i"!.  2 

•  SI 'SS    -14  coiiLr 

nitent  on  the  part  of  Great  Britain  to  harm  or  in  any  way  to  p.  41. 
wrong  them  while  under  our  ])rotection,  all  the  authorities 
would  go  to  prove  that  our  Government  would  be  bound  to 
defend  and  protect  them  in  their  rights,  ei'en  against  their 
own  Government.  Our  complaint  against  Great  Britain  was 
not  that  she  had  directly  or  intentionally  wronged  our  Gov- 
ernment or  its  citi/.cns,  but  that  wrong  had  been  done  ihr.iugli 
20  her  neglect  to  observe  her  neutral  obligations." 

Then,  after  reviewing  the  negotiations  which  preceded  the 
Convention  and  concluding  that  the  proceedings  at  Geneva 
negatived  the  idea  of  the  iiayment  of  compensation  to  British 
subjects,  he  proceeds  : — 

"If  Great  Britain  supposed,  as  seems  to  have  been  the  case,  ii,i,i ,,.  n. 
that  in  paying  this  money  it  was  to  indemnify  those  who  had 
been  injured  by  her  tiiilurc  to  execute  her  own  municipal  laws, 
would  she  not  regard  any  action  on  our  part  in  indenmifying 
her  own  subjects  for  her  neglect  as  inconsistent  with  the  ob- 

30  jects  and  purposes  for  which  she  agreed  to  the  arbitration  in 
the  iirst  place,  and  to  the  payment  of  the  money  in  the  second 
place;  And  trhitr  irc  )ni<;ht  lie  Invind.  to  indemnify  a  British 
.siilijn'i  <lillid  In  nnr  protii-lion  ndui  liad  suff'ired  a  direct  posi- 
tire  n-r  ./  from  his  own  ijovi  rnmcnt,  are  we  boiind  toindenmify 
him  for  a  loss  consequent  upon  the  liiilure  ol  his  government 
to  do  her  duty  as  to  the  conduct  of  her  own  subjects?  Sup- 
pose it  had  been  pioposed  at  Geneva  to  hold  the  Britisii  Gov- 
ernment nsponsiiile  for  losses  susta  I'd  by  her  own  subjects 
because  of  liiilure  to   execute  her  own    laws,  would  she  not 

40  have  promptly  replied,  '  Tliiit  is  my  own  atfair;  1  am  fully 
comiietent  to  take  rare  ot  my  own  subiects.  Whilst  you 
may  hold  vie  acconntatile  for  a  ilir.rl  injury  done  even  to  my  own 
snhjeits  while  under  y»nr  prolert,  ,,  you  have  no  right  to  hold 
me  accountable  f(U' a  wrong  done  to  myself  or  to  my  own  sub- 
jects in  a  tiulure  to  execute  my  own  iiiiiniripal  law."  " 

The  following  authorities  may  hi'  icferred  to  as  further 
illustrations  of  the  general  rule  tn  I,,  applied  in  cases  like  the 
present. 

In  this  case  tiic  ship  was    clainicil    by    Mr.  .lohnson 
50  American  suliject.    lie  was  born  in  .Vmerica.      Left  that  conn 

try  in  1771  and  settled  in  Kngland  in  177:).  During  the  Ame-  •'"^'  "■  ''■  '-'• 
riean  War  of  177M,  lie  left  Kngland  and  settled  in  France  but 
returned  to  Kngland  ni  17.S.5.  ilecontiinu'd  there  carrying  on 
business  as  a  mercliant  till  1797.  in  the  year  1700  ho  acted 
as  un  American  Consul  in  Kngland.  In  considering  whether 
or  not  he  was  to  be  deemed  an   American  or  British  subject, 


as   an  'vuv  ••imiiMM 


^BBB 


52 


EFFECT    OF    DOMICILE    ON    NATIONALITY. 


"i  liiiltiii.'-nnV 
ii'liiiiniltv. 
U.  |i.  l-'ll. 


Sir  William  Scott,  iiftor  deeiding  that  ho  had  not  lost  the  be- 
nefit of  his  native  American  character  proceeds: — 

"lie  camo  from  America  to  this  country  in  1773  and 
engaged  in  trade  and  has  resi<lcd  in  this  country  till  1707. 
During  that  time  he  was  undonhtedly  to  lie  considered  as  an 
English  trader  for  no  jiosition  is  more  established  than  this 
that  if  a  person  goes  into  another  country  and  engages  in  trade 
and  resides  there  he  is  by  the  law  of  nations  to  be  considered 
as  a  merchant  of  that  country.  I  should  therefore  have  no 
doubt  in  pronouncing  that  Mr.  dohnson  is  to  be  considered  as  10 
a  merchani  of  this  country  at  the  time  of  the  sailing  of  this 
vessel  on  her  outward  V03  ige." 

t  England  and  Holland  were  at  war  and  the  Cape  of  Good 
Hope  was  in  the  possession  of  Tloliand.  The  ship  was  taken 
on  a  voyage  from  the  Cape  to  Europe  and  was  claimed 
by  Mr.  Elmslie  as  an  American  citizen  residing  at  the 
Cape.  It  appeared  that  he  was  a  British  born  subject  but  had 
lived  in  America  and  liad  gone  to  the  Cape  during  a  former 
war  and  while  the  liritish  had  possession  of  it.  He  continued 
to  reside  there  after  it  fell  into  the  hands  of  Holland  and  it  20 
was  during  the  last  residence  the  vessel  was  seized.  Sir  Wil- 
liam Scott  said  : — 

"The  court  must  1  tliink  surrender  every  principle  on  which 
it  has  acted  in  considering  the  question  of  national  character  if 
it  was  to  restore  this  vessel.  The  claimant  is  described  to 
liave  been  for  many  years  settled  at  the  Cape  with  an  estab- 
lished house  and  trade  and  as  a  merchant  of  that  place  and 
must  be  taken  as  a  subject  of  the  enemy's  country, 

"See  also  the  case  of  the  '  Anna  Katherina'." 


UI7. 

1  H.l;_v:ili 
;iiliniriilt\' 
.11  p.  \irX. 


In  the  case  of  the  "  Matchless,"  Lord  StowcU  said  : — 


30 


"  Mr.  Millidge  is  a  Uritish  liorn  subject,  but  at  present  re- 
siding at  Boston.  He  is  described  by  the  judge  as  residing 
with  bis  family  there  and  lie  iip[iears  in  this  transaction  as  ex- 
porting goods  thence. 

"  #  *  *  A  question  then  arises  ol  great  moment  rcgard- 
hig  as  well  the  interests  of  a  state  a-  the  interests  of  its  subjects. 
Is  such  a  ]icrson  to  bo  con-idercd  as  a  merchant  of  Creat  Britain 
or  a  merchant  of  .America?  I'lion  such  a  (piestion  it  has  cer- 
tainl}'  been  laid  di)wn  by  accredited  writers  on  general  law  and 
ujion  grounds  apparently  not  unroasonalde,  that  if  a  merchant 
expatriates  himself  as  a  merchant  to  carry  on  the  trade  of 
another  count  ly,  exporting  its  produce,  paying  its  taxes,  employ-  "^0 
ing  its  i)Cople  and  ex|ieiidiiig  his  spirit,  his  industry  and  his 
capital  in  its  service,  he  is  to  be  deemed  a  merchant  of 
that  country.  He  may  in  some  rcs[iccts  be  less  favoureil  in 
that  country  than  one  of  its  initive  subject.'^.  Our  own  country 
which  is  cliMiged  with  holding  the  doctrine  of  unextinguish- 
ablc  aliyn  allegiani'c  more  tenaciously  than  others  is  no  stranger 
to  the  aii[iliiation  of  this  rule.  Its  highest  tribunals  winch 
adjudicate  the  naMonal  character  of  property  taken  in  war, 
apply  it  universally.     They   privilege  persons  residing  in    a  50 


neutral  countrv  tu  ti 


mle 


Biil 


lis  iVcelv   with   the  eiKMiiies  of  Groat 


un  111  war  as  the   11  iiivc  subject  of  a  neutral  country. 


al- 


tliougii  our  own  re-ideiil  iiierihaiits  cannot,  without  the  special 
pcrmissidii  of  the  Crown,  and  they  conliscato  the  property  of 
an  Knglish  subject  resident  in  an  enemy's  country  as  freely  as 
that  of  the  native  subioct." 


p. 


1 


EFFECT  OF   DOMICILE   ON   NATIONALITY. 


68 


73   and 

11  1797. 

1  iis  an 

lan  tills 

ill  ti'iulo 

isidcrcd 

iivo  no 

ored  lis  10 

of  this 

f  Good 

a  taken 

claimed 

at    tlie 

1 

int  had 

1 

former 

i 

itinuod 

1 

and  it  20 

1 

5ir  Wil- 

:| 

■i 

n  which 

•acter  if 

ibed   to 

1  estah- 

aco  and 

1  aa  ex- 


Ill  Driimmond's  case  2  Knapp,  P.  C.  295,  it  was  decided 
that  a  person  who  possesses  the  characters  both  of  a  French 
subject  under  the  municipal  law  of  France,  and  of  a  British 
subject  under  the  Statutes  of  England,  as  the  grandson  of  a 
natural  born  British  subject,  although  both  he,  himself  and  his 
father  were  born  in  a  foreign  country,  was  not  entitled  to  claim 
compeiisalion  for  a  loss  he  had  sustained  from  a  confiscation 
of  his  property  by  the  French  Government  under  a  treaty 
between  Great  Britain  and  France,  giving  compensation  for 
10 '^»ch  a  loss  to  J3n7(s/(  subjects.  The  point  to  be  decided  was 
stated  by  Lusbington,  counsel  for  the  appellents,  as  follows  : — 

"  Ist,  the  actual  undue  confiscation  or  detention  of  the  pro- 
perty by  the  French  Government ; 

"  2dly,  the  fact  of  the  owner  of  it  having  been  a  British 
subject." 

And  further  on  he  states  that  by  the  English  Statute  the 
claimant  was  "  to  all  intents,  constructions  and  purposes  what 
soever  "  a  British  subject. 

In  the  argument  for  the  Crown  the  following  occurs : — 

lIO  "  When,  therefore,  a  treaty  speaks  of  the  subjects  of  any 
nation,  it  must  mean  those  who  are  a  dually  and  effectually  under 
its  rule  and  government,  not  those,  who  althougli  living  out  of 
its  dominions,  and  never  having  been  subject  to  its  government, 
it  may  choose  to  designate  its  subjects  in  its  own  municipal 
laws  and  statutes.  It  never  could  have  been  the  intention  of 
the  framers  of  this  treaty  that  the  expression  '  British  subjects ' 
should  include  persons  who  were  also  French  subjects  "  *  ^ 
"for  there  is  no  doctrine  better  established  in  them  than  that 
the  duties  of  allegiance  and  the  right  to  protection  are  inse- 

30  parable,  and  the  subject  who  is  entitled  to  the  latter  is  also 
bound  to  render  the  former." 

The  Vice-Chancellor,  says  : — "  The  treaty  between  England 
and  France  meant  to  provide  an  indoninity  to  all  British 
subjects  for  their  losses,  occasioned  liy  the  illegal  acts  of  the 
French  Government.  The  Commissioners,  by  their  award, 
seem  to  consider  that  James  jjcwis  Drummond  was  not  a 
British  subject."  "In  this,"  the  judge  proceeds  to  say,  "  they 
were  in  error,"  and  then  goes  on  "  But  though  formally  and 
literally,  by  the  law  of  Great  Britain,  he  was  a  British  subject, 
40  the  (piestion  is,  whether  ho  was  a  British  subject  within  the 
meaning  of  the  treaty.  He  might  bo  a  British  subject  and 
might  also  be  a  French  subject." 

Further  on,  he  says  : — 

"Their  Iiordships  arc  therefore  of  opinion  tliat  although 
James  Lewis  Drummond  was  techiiieally  n  British  subject  in 
the  years  1792  and  1794,  yet  he  was  also,  at  the  same  time,  in 
form,  and  in  substance,  a  French  subject,  domiciled  in  Franco, 
with  all  the  marks  and  attributes  of  French  character.  IIo 
and  his  family  had  resided  in  France  for  iiiore  than  a  century  ; 
50  and  the  act  of  violence  that  was  done  towards  him  was  done 
by  the  Kronch  Government  in  the  exercise  of  its  municipal 
authority  over  its  own  subjects." 

Against  this  judgment  six  of  the  most  eminent  French 
lawyers  prepared  an  elaborate   opinion  on  the  ground   that, 


54 


EFFBCT   OF   DOMICILE   ON   NATIONALITT. 


7  Cr.uicli, 
|i.  riOli. 


according  to  tho  law  of  Franco,  Dnimmoiid  was  not  a  French 
subject,  and  they  sent  it  to  the  Lords  of  tho  Treasury  praying 
that  the  ease  might  bo  again  referred  to  the  Judicial  Com- 
mittee in  order  that  it  might  bo  reconsidered.  These  opinions 
were  duly  laid  before  the  Judicial  Committee,  and  the  answer 
received  contained  the  following  : — "  and  that  the  Lords  of 
the  said  Committee  are  of  opinion  that  the  case  of  memorialists 
should  not  bo  reheard,  because,  admitting  the  correctness 
of  the  statement  of  the  French  law  by  tho  above  mentioned 
advotates,  they  are  satisfied  upon  tho  facts  that  James  Lewis  10 
Drummonl,  and  James  Drunimond  his  father,  did  sufficiently 
indicate  by  their  conduct  their  intention  to  accept  the  character 
of  French  subjects." 

In  tho  Countess  De  Conway's  case  it  was  decided  that  a 
foreigner  domiciled  in  Great  Britain  is,  under  tho  treaty 
referred  to  in  Drummond's  case,  entitled  to  claim  compensation 
for  his  losses. 

Judgment  was  given  at  page  307,  and  it  contains  the  following 
clause  : — 

"  And  in  order  to  bring  it  within  the  principle  of  Andre's  20 
case,  it  must  be  shown  that  she  was  a  British  subject  in  some 
sense,  within  tho  interval  between  January  and   April,  1793." 

And  further  on  : — 

"  One  of  these  two  things  must  bo  shown,  either  that  the 
Countess  was  a  natural  born  British  subject,  or  thai  having 
boon  born  abroad,  she  was  domiciled  in  England,  and  in  that 
character  entitled  to  tho  protection  of  a  British  subject  at  the 
time  of  the  confiscation." 

The  judgment  proceeds  to  disallow  the  claim  on  the  ground 
that  neither  of  these  two  facts  had  been  proved,  and  concludes  : —  30 

■'  If  the  claimants  had  put  their  case  upon  the  ground  that 
tlio  Countess  was  entitled  to  comiiensation  under  tiio  treaty,  as 
being  a  British  subject  by  rc<ideiico  in  Kngbnid,  althongli  not 
a  natural-born  British  sultjoct,  evidence  to  that  cft'ect  ought  to 
have  boon  laid  before  the  commissioners." 

In  tho  case  of  Livingston  vs.  the  Maryland  Insurance  Com- 
pany, where  the  (piostion  was  as  to  whether  a  S[)ani8h  sulyoct 
coming  to  the  United  States  in  time  of  peace  between  (Jroat 
Britain  and  Sjiain  and  continuing  to  reside  there  after  tho  begin- 
ning of  hostilities,  was  to  be  considered  an  American  or  a  Spanish  40 
merchant.     Story,  J.,  in  delivering  judgment  says  : — 

"  It  is  clear  by  the  law  of  nations,  that  tho  national  character 
of  a  person,  for  commercial  purposes,  depends  upon  his 
domicile.     *     *     * 

"  But  whenever  a  person  is  /«)«<//?</(; domiciled  in  a  particular 
country  the  character  of  the  country  irresistibly  attaches  to 
him.  Tho  rule  has  boon  a|iplied  with  e([ual  impartiality  in 
favour  and  against  neutrals  and  belligerentB.  It  is  perfectly 
immaterial  what  is  the  trade  in  which  the  party,  is  engaged  or 
whether  ho  bo  engaged  in  any.  If  he  be  settled  liomi  full'  in  a  jq 
country  with  the  intention  of  dolinito  residence  ho  is  as  to  all 
foreign  countries  to  be  deemed  a  subject  of  that  country." 


EFFECT  OF  DOMICILE  ON   NATIONALITy. 


65 


In  the  case  of  tlie  "  Venna"  it  is  decided  : 

"That  if  a  citizen  of  tl\e  United  States  establishes  his 
domicile  in  a  foreign  country,  between  which  and  the  ITnited 
States  hostilities  afterwards  break  out,  any  property  shipped 
by  such  citizen  before  the  knowledge  of  the  war  and  captured 
by  an  American  cruiser  after  the  declaration  of  war  must  be 
condemned  as  a  lawful  prize. 

After  discussing  the  law  of  domicile  as  applied  to  aliens^ 
Washington  J.,  who  delivered  the  judgment  of  the  Supreme 
10  Court,  says ; — 

"  The  properly  of  such  persons  equally  loith  that  of  the  native 
subjects  in  their  totality  is  to  be  considered  as  the  goods  of  the 
"nation  in  regard  to  other  states  It  belongs  in  some  sort  to  the 
State  from  the  light  which  she  has  over  the  goods  of  the 
citizens  which  make  a  part  of  the  sum  total  of  its  rights  and 
augment  its  power." 


S  (!iant'li, 

p.  ■2:>x 


It  is  contended,  therefore,  that  in  the  circumstances  shown, 
the  term  "Citizen  of  the  United  States"  can  as  between  Great 
Britain  and  the  United  States  be  applied  to  the  persons  in 
20  question  only  in  a  very  limited  ami  qualified  sense.  They 
would  doubtless  be  so  styled  if  they  liad  returned  to  that 
country  and  had  there  taken  up  a  permanent  abode  at  or  prior 
to  the  time  when  the  injuries  were  inflicted  ;  but  inasmuch  as 
they  were  then  domiciled  on  British  soil  they  are  to  be 
regarded  as  the  subjects  of  Great  Britain  in  every  case  in 
which  the  principles  of  international  law  are  to  be  applied  to 
a  controversy  arising  between  that  nation  and  any  other  state- 


In  this  connection  it  is  not  necessary  to  regard  any  con- 
tention based  on  the  laws  relating  to  naturalization.  Such 
30  enactments  are  municipal  in  their  character.  They  are 
generally  the  outcome  of  special  treaty  provisions,  and  are 
designed  to  add  certain  political  rights  and  certain  local  privi- 
leges to  a  citizenship,  which  has  been  already  established  by 
the  accepted  doctrines  of  international  usage. 

"The  only  effect  of  the  naturalization  acts  is  to  confer  the 
benefits  of  naturalization  in  Great  Britain  on  those  who  come 
there  and  avail  themselves  of  them. 

"  In  international  law,  locality  not  nationality  is  the  all  im- 
portant  test  of  character." 


CLAIMS  PRES PANTED  ON  A(!C01TNT  OF  PERSONAL 
IIARDSniP  SUFFERED  BY  THE  CREWS  OF 
THE  SEIZED  VESSELS. 


Great  Britain  claims  that  there  should  be  allowed  in  each 
c£.80  a  sum  sutHcient  to  compensate  each  member  of  the  crew 
for  personal  hardship  siitfered  by  him  in  consequence  of  the 
seizure,  this  sum  being  in  addition  to  damages  sustained  by 
reason  of  the  breaking  up  of  the  voyage.  It  was  contended  at 
the  hearing  that  the  fact  that  certain  claims  for  damages  for 
illegal  arrest  and  imprisonment  of  the  masters  and  mates  of  10 
some  of  the  vessels  had  been  specially  mentioned  raised  a 
presumption  against  the  admission  of  any  such  claim  on 
behalf  of  other  members  of  the  crews.  The  answer  to  this 
contention  is  that  the  claim  of  the  masters  and  mates  was  of 
a  nature  different  from  that  of  the  other  members  of  the 
crews.  They  were  formally  arrested  and  imprisoned  under 
process  of  law  which  the  other  members  of  the  crews  were  not. 
Their  claims  were  larger  in  amount  and  therefore  as  a  matter 
of  convenience  it  was  considered  advisable  to  deal  with  them  20 
separately,  but  it  was  not  by  this  intended  to  waive  the  claim 
of  the  crew  for  the  personal  hardships  they  endured,  which 
claim  being  in  every  respect  fair  and  equHable,  should  especially 
as  between  two  great  nations  be  considered  a  tit  subject  for 
adequate  compensation. 

It  is  not  proposed  to  deal  here  vvith  the  evidence  proving 
the  particulars  of  the  hardship  suffered  by  the  different  mem- 
bers of  the  crews  as  this  can  more  conveniently  be  referred  to 
when  considering  the  case  of  each  vessel  separately. 

It  will  not  be  necesssary  for  the  Commissioners  to  find 
separately  for  each  member  of  the  crew  under  this  liead,it  will  30 
suffice  if  in  the  case  of  each  vessel  a  lump  sum  is  allowed  suffi- 
cient to  cover  the  claim  arising  for  personal  hardaliip  suffered 
by  the  crows. 


66 


THE  OHARAOTER  AND  EXTENT  OF  THE  SEALING 
GROUNDS  IN  BEIIRING  SEA. 


The  passages  on  the  habits  of  the  Alaskan  seal  as  preseiiteil 
in  the  Case  of  the  United  States  at  Paris  at  the  following 
pages  are  adopted  for  the  purposes  of  this  argument  and  as 
being  in  the  main  correct. 

At  page  115  of  the  Case  ic  is  shown  that  after  breeding  on 
the  island  the  seals  go  miiuy  miles  into  the  sea  "  from  100  to 
200  from  the  rookeries."  *  *  "They  are  caught  all  the 
10  way  from  twenty  and  one  hundred  and  fifty  miles  from  land." 
Reference  is  made  also  to  the  "  principal  hunting  ground  '  as 
being  one  hundred  miles  from  the  Islands  of  St.  George  and 
St.  Paul. 

"The  course  of  sealing  vessels  and  their  daily  catch  show 
also  that  the  majority  of  the  seals  taken  in  Behring  Sea  are 
secured  at  over  one  hundred  miles  from  the  Pribilov  Islands." 

Again,  at  page  209,  it  is  shown  that  on  these  excursions 
"  they  fall  a  prey  to  the  pelagic  hunter."  The  case  at  page 
210  refers  to  the  evidence  of  an  Indian  who  got  1,900  seals, 
20  "  all  of  which  were  captured  in  the  sea  close  to  Ounalaska." 

Reference  is  made  at  page  322  of  the  United  States  Seal 
Commissioner's  report  respecting  the  home  of  the  fur  seal. 

At  page  323  it  is  shown  that  being  migratory  animals  they 
follow  "definite  routes  in  migration." 

At  page  329  it  is  said  the  seals  depart  from  the  islands 
about  the  middle  ot  November. 

Captain  Hansen,  a  witness  on  behalf  of  Her  Majesty,  in  his 
cross-examination  Btatrs  that  the  Unirnak  Pass  is  the  usual 
passage  of  the  seal  hr  rd  ;  that  it  is  the  highway  of  the  seals 
30  into  Behring  Sea. 

Charts  from  the  United  States  case  at  Paris  showing  the 
migration  of  seals  and  the  position  of  the  vessels  when  seized; 
charts  prepared  by  Professor  Townsend  for  the  United  States 
authorities  showing  the  localities  in  which'pelagic  sealins;  was 
conducted  in  Behring  Sea  from  1883  to  1893,  and  charts  indi- 
cating the  courses  of  some  of  the  schooners,  were  put  in  evi- 
dence. These  charts  establish  the  fact  that  the  seals  breedino- 
on  the  Pribilov  Islands,  scatter  over  the  waters  of  the  Pacific 
for  certain  portions  of  the  year  atid  are  found  in  a  compsra- 
40  tively  limited  portion  of  Behring  Sea  during  the  months  of 
July,  Augub*.  and  September  chiefly  to  the  south  of  the  Pribi- 
lov Islands,  between  these  Islands  and  the  Aleutian  chain 
through  the  passes  of  which  the  seals  enter  and  leave  the 
sea. 


The  Migration  chart  (contained  in  vol.  HI.  of  the  United 
case  at  I'aris)  shows  that  the  seals  in  July,  August 


Stat 


BS — 8 


67 


68 


SEAUNd    OKOUNHS    IN    DKIIRtNQ   HKA. 


and  September  of  1801  wore  observed  b}'  the  patrol  veasolH  of 
the  United  States  to  have  been  nioiitly  iu  the  [)08ition  above 
referred  to. 

The  Sealini^  chart  shows  seals  reported  and  seen  in  18!tl. 
(Also  in  United  States  Case,  vol.  III.)  It  coniaiiw «  eirdo drawn 
around  the  Islands  within  a  radius  of  about  lifty  miles.  Inside 
of  this  circle  appear  the  words  "  aeals  within  this  area  very 
numerous." 

Map  of  seizures  188(5,  1887  and  1880  (in  the  United  States 
case,  vol.  III.)  shows  the  locality  of  the  seizures  in  the  years  10 
mentioned,  and  indicates  that  thoy  were  generally  confined  to 
the  grounds  where  seals  are  shown  on  the  charts  mentioned 
above,  as  well  as  on  chart  No.  6  of  the  counter  case  herein- 
after referred  to. 

The  chart  containing  the  cruise  of  the  "  Ellon,"  1887  (United 
States  ease,  vol.  III.)  contains  a  plotting  ofthe  cruise  of  this  seal- 
ing schooner,  and  shows  the  ground  worked  over  wasabout  120 
miles  from  the  Aleutian  Islands  at  the  outside,  and  generally 
between  the  Aleutian  chain  and  the  Pribilov  Islands. 

The  chart  ofthe  cruise  of  the  "  Annie"  in  1887  (United  States  20 
ease,  vol.  III.),  contains  a  plotting  from  the  log  and  is  almost  the 
same  as  that  of  the  "  Ellen." 

The  chart  of  the  cruise  of  the  "Alfred  Adams"  (United 
States  case,  vol.  III.)  shows  this  vessel  worked  over  the  same 
loca  1  iy. 

The  chart  of  the  "  Ada"  (United  States  case,  vol.  III.) 
shows  that  in  a  comparatively  short  period,  this  sealing  schooner, 
working  in  the  locality  above  referred  to,  took  1875  skins. 

Chart  No.  1  (counter  ease  United  States,  vol.  7.)  shows  the 
portion   of    Behring  Sea   which    United    Stutes   and    British  30 
cruisers  patrolled  when  protecting  the  seal  ilshery  under  the 
moil  us  Vivendi,  between  July  1.5th  and  August  15th,  1801. 

Chart  No.  ;5  indicates  the  cruises  of  the  same  vessels  between 
August  15th  and  September  loth,  1801, 

From  these  charts  it  will  appear  that  the  cruising  was 
conlined  to  a  comparatively  limited  portion  of  Behring  Sea 
The  patrol  covering  chietly  that  ]iart  of  the  waters  from  the 
Aleutian  Passes  to  the  Islands,  and  from  the  Islands  south- 
east to  the  Alaskan  IVninsula. 

Chart  No.  (!  shows  the  position  and  number  of  seals  observed  40 
and  reported  on  the  patrol  of  the  LTnited  States  naval  vessels 
in  July  and  August,  1802. 

It  will  be  seen  that  the  track  of  these  vessels  detailed  to 
protect  the  seals  was  between  the  Alaskan  chain  and  Pribilov 
Islands,  and  nearly  all  of  the  cruisers  were  within  180  to  200 
miles  of  the  Islands  of  St.  Paul  and  St.  George.  Upon  this 
chart  also  ap[iear  circles  with  a  radius  of  about  50  miles  about 
the  islands,  insido  of  which  are  printed  the  words  :  "  seals 
within  this  area  very  numerous," 

Chart  No.  7  corrects  the  migration  chart  referred  to  in  United  50 
States   ('ase   upon    one   point,  only,  namely,  the  position    of 
female  seals  in  the  spring  and  summer  mouths  along  the  coast ; 


I 


m 


HBATiINO   GROUNDS    IN    tlEIIKINa    SEA. 


59 


It  HiifKciently  iiidicateH,  as  well  as  tho  migration  chart  first 
refcrrod  to,  tho  coniparativi'ly  liiiiitL'd  spaco  Imtwcoii  the  pass 
oftlio  Alfiitiaii  Isluiuls  and  tho  I'rihilov  group  in  which  seals 
are  round. 

In  tho  United  States  Case  i)rescnted  to  the  Paris  Trihiinal, 
tho  t'ollowing  statcnieiit  was  made  on  hehalt'ot  that  (Jovern- 
nient  ; — 

"  Tho  herd  spreads  along  tlio  coast  in  a  long  irregular  hody,  n.  -Mr,. 
generally  advancing  northward  until  they  lK'gi?i  to  enter ''"" '" 
10  Ik'hring  Sea  in  May  or  June,  through  the  eastern  passage  of 
tlie  Aleutian  Islands,  seldom  going  west  to  the  Four  Mountain 
Pass.  But  the  last  of  tho  herd  do  not  leave  tho  Pacific  Oceiin 
until  -July.  The  cows,  however,  are  practically  out  of  the 
Pacific  O(;oan  hy  the  middle  of  Juno.  A  chart  showing  this 
migration  has  heen  prepared  from  the  (hita  contained  in  tlie 
depositions  herewith  submitted." 

Another  map  shows  the  location  at  different  seasons  of  a 
part  of  the  catch  of  fur  seals  from  1883  to  1808,  based  on  the 
log  entries  of  five  vessels  engaged  in  pelagic  sealing.  This 
20  map  was  i)repared  by  C.  H.  Townsond,  Assistant  U.S.F.C.  It 
appears  that  the  bulk  of  the  seals  were  taken  in  July,  August 
and  September.  That  they  were  taken  chietly  between  tlie 
Pribilov  Islands  and  the  ])assos  of  the  Aleutian  chain,  tho 
catches  being  south  and  south-east  of  the  Pribilov  group. 

Another  map  shows  the  location  at  different  seasons  of  the 
catch  of  fur  seals  in  1894,  based  on  tho  log  entries  of  vessels 
engaged  in  pelagic  scaling.  This  ma|)  was  also  prepared  by 
M  r.  Townsend.  The  bulk  of  those  seals  is  shown  to  have  been 
taken  in  August  and  September.  The  seals  wore  captured  mid- 
3Q  way  between  Unimak  Pass  and  St.  George  Island  from  50  to  (JO 
miles  of  the  Aleutian  chain  and  from  50  to  CO  miles  of 
Pribilov  Islands. 

Another  map  shows  the  location  of  the  catch  of  fur  seals  in 
1895,  and  is  based  on  the  log  entries  of  vessels  engaged  in 
pelagic  sealing.  This  map  was  also  prepared  by  Mr.  Townsend. 
The  location  of  the  sealing  ground  and  of  the  catch  of  seals 
agrees  with  the  last  map.  Mr.  Douglass,  a  i)ilot  in  the 
reveinie  marine  service  of  the  United  States  for  7  years 
preceding  August,  188tj,  was  called  by  the  United  States  as  a 
4Q  witness  for  the  prosecutions  at  Sitka,  in  188G.  He  testified  as 
follows  : — 

"  I  have  been  cruising  for  more  than  15  years  off  and  on  in  So,,.  Kx.  Doe. 
Alaskan  waters,  always  as  an  ofHcor  or  pilot,  and  have  visited  ^""'  •'•  ■"''■ 
the  Pribilov  Islands,  St.  Paul  and  St.  George,  several  hundred 
times,  and  am  perfectly  familiar  with  the  "sealing  business  as 
conducted  on  those  islands  and  understand  tho  migrating 
habits  of  the  fur-seal.  From  about  tho  first  of  May  to  abou't 
tho  first  of  July  each  year  the  fur-seal  is  migrating  north 
through  the  Unimak  and  Akutan  passes  to  these  islands  for 
50  breeding  purposes." 

Mr.  Alexander,  an  officer  in  the  service  of  the  United  States 
Government,  called  as  a  witness  before  the  present  commission, 
testified  as  follows  : — 

Q.  "And  from  your  observation  you  have  ascertained,  so  h  I84  li,,^.  4 
far  as  you  were  able  to  ascertain,  that  from  year  to  year  they    '      ' 


60 


SEALINd    (IRUUNDS    IN    IIKIIRINO    SBA. 


S,ii.   \\.  I' 
11  111,  p.  -II. 


li. 

III! 


I!.  -JHl. 


I{.  '-".I-.'. 

lillr  -Jll. 


I!.  '.".i:i, 
liiM-  (ii;. 


I!.  :(iii, 

lilli-  IS. 


1!.  :'.o7. 

\'\W  "Ml. 


roniaiiiiul   in    Itoliriii^  Sea  in  Inr^e  (iimntitiea  in   ,hi]y   and 

August  ? 

A.  "Tliiit  irt  tlio  niitiiral  Hi'iiling  grounildurini;  tlioso  inontlm 
in  Holirinu:  Scu ;  tlicri"  niurtt  lie  ii  liirgis  fjunntity  of  Huh  on 
whicii  tlioy  livo  in  Mi'liiiiit;;  Sou  aromul  the  IViltilov  lulnnds 
lit  that  time,  tiioy  heint;  tish  outing  uniniuls.     *     #     *     * 

Tiio  woi/.iiii,^  olHoor  ot  tlio  "  Corwin,"  in  the  case  of  the 
"Ourolena,"  oshilitiHiio.-*  the  fuot  that  tiio  souling  ground  wub 
well  known.  When  uhUoiI  wliut  iio  was  doing  in  the  lino  of 
hirt  duty  on  the  Ittt   August,  188t),  he  said  :—  ^^ 

•'Cruiriing  in  Hohring  Sea  uhoiit  ueventy-tivo  miles  80Uth- 
aoutheust  from  St.  (h'orgo's  Isluml.'' 

This  is  where  a  good  sealing  ground  is  understood  to  be, 
where  the  "(^arolena  "  was  uotually  caught  scaling,  and  where 
the  United  States  cutlers  e-xjieeted  sealers  to  be  hunting. 

Witness  Hragg,  culled  on  behalf  of  Her  Majesty,  respecting 
the  catch  of  the  '•  .\[ary  KUoii  "'  in  1888  (fully  discussed  in 
another  place),  gave  evidence  in  n  ference  to  the  part  of  tlio 
sea  he  was  sealing  that  year  : 

"  Give  it  to  us  genorallv  ?  •" 

"  Between   ■)4^'  30"  anil  3.')"  north   latitude  mid  ie8°  to 


A. 


160"  30  west  longitude.  I  v  as  always  under  the  impression 
that  that  was  the  latitude  and  Ion  .jitude  we  were  hunting  in. 
We  had  been  up,  I  understand,  oi'  "board  the  vessel,  to  the 
north-east  of  St.  George. 

Q.  "  When  were  you  up  there  ? 

A.  "When  we  iirst  entered  the  ,-.a. 

Q.  "And  then  you  worked  in  whic'i  uireetion? 

A.  "To  the  southward." 

Captain  Warren,  one  of  the  pioneer  sealira,  gives   the  lati-  30 
tude  and  longitiiile  of  his  hunting  in  1886.     From  this  record 
the  soaiing  grounds  shown  in  the  charts  as  indicated  above 
are  easily  located. 

Captain  O'Leary,  a  witness  called  on  the  part  of  Her  Majesty, 
shows  that  he  sealed  on  the  grounds  in  1886  in  the  "  Pathfin- 
der," which  made  its  catch  in  the  waters  between  the  Pribilov 
Islands  and  the  Aleutian  chain  as  described  in  the  chart. 

In  1887,  while  he  hunted  a  little  more   to  the   westward  of 
the  grounds  which  he  hunted  in  1886,  nevertheless  the  catch 
of  that  season  was  made  in  comparatively  the   same  portion  of  ^^ 
the  sea.     lie  was  not  far  from  Bogoslott"  when  he  started   for 
homo. 

Mr.  Ramla.so,  a  witness  called  on  the  part  of  Her  Majesty, 
testified  that  in  1886  he  sealed  in  that  part  of  the  sea  in  which 
he  could  see  Bogoslott' on  several  occasions.  He  seuled  he  said 
probably  30  to  40  miles  from  it. 

Mr.  Rop[ieii,  a  witiu'ss  on  behalf  of  Her  Majesty,  in  his  di- 
rect examination  stated  that  in  the  months  of  July  and  August, 
1886,  the  position  of  his  vessel  was  between  the  Pribilov  Islands 


and  Ounalaska.  That  lie  was  about  55  north  latitude  and  166 
and  167  west  longitude.  That  he  was  there  in  July  and  that, 
at  the  beginning  of  August,  he  went  further  east,  about  20  or 
30  miles.     lie  had  heartl  of  seizures  at  this  time. 


50 


SEAUNa   OROUNTiS   IN    nBIIIima   HE  A. 


01 


Illy   and 

)  months 
■  Hsh  on 
'  [Blands 

*     * 

B  of  the 
und  was 
10  lino  of 

us  aouth- 

(1  to  be, 
id  wlieio 

ispeeting 
cussed  in 
ut  of  the 


10 


20 


1  16'8°  to 
iipression 
nting  in. 
1,  to  the 


the  lati-30 
lis  record 
ed  above 

Majesty, 
■  Pathfin- 

Pribilov 
art. 

itward  of 
;he  catch 
lortion  of  ^" 
irted   for 

Majesty, 
in  which 
1  he  said 

in  his  di- 
l  August, 
IV  Islands 
e  and  166  ^^ 
and  that, 
out  20  or 


In  liin  cross  cxaniiimtion  ho  was  further  ([uostionod  us  to  his  ii.  :im, 
oxperiiMico  in  1880,  and  ho  told  N[r.  Lansing  tiiat  sonietinios  ho 
wont  to  the  west,  or  nortii,  or  cast,  or  south  oftlie  [slands,  and 
the  souls  he  found  no  thicker  in  ono  ((uartor  than  in  another. 
Later  on  ho  exphiinod  that  in  all  of  this  sailing  lie  covered 
only  the  '*  sea  about  the  Islaiids." 

Captain  McKiol,  a  witness  called  by  Her  Majesty,  referring  li.  ii7i, 
to  the  "  Mary  Taylor"  in  1887,  exiiluins  that  ho  worked  in  the 
vicinity  of  56  north  latitude,  171  west  longitude  that  season, 
[0  and  when  asked  how  the  truck  of  liis  vessel  compared  one  year 
with  another  he  said  that  "  the  track  this  year  will  cover  the 
year  before,"  gonerally. 

Cuptain  Moss  explained  that  in  1887  ho  sealed  at  about  K- :i'|^ 
169'30  longitude  and  o6"15  latitude.  That  ho  worked  from 
there  north  towards  Ounalaska,  und  tho  last  ho  sealed  was 
about  20  miles  oifOunulasku.  That  in  1886  ho  sealed  about 
the  same  place.  That  ho  sealed  six  times  in  Bohring  Sea, 
three  times  as  master,  and  that  he  generally  goes  to  the  same 
place,  namely,  56  north  latitude  and  169  west  longitude ;  that 
20  he  generally  made  good  catches. 

Captain  McLouii,  a  chief  witness  for  tho  United  States,  inH'ii, 

,  .       ,f  .         .  .  ,  liiH'  Hi. 

bis  direct  examination  said : — 

"  I  used  to  find  the  l)est  hunting  about  sixty  or  seventy 
miles  oft",  or  even  ninety  miles." 

Asked  "  Are  you  speaking  of  the  I'ribilov  Islands  ? "  ho 
answered  "  Either  the  I'ribilov  Islands  or  the  main  islands 
abreast  of  them." 

Cross-examined  in  regard  to  the  entries  in  his  log,  tho  fol- 
lowing statements  wore  made,  which  indicate  that  Mr.  McLean 
30  who  claimed  to  bo  the  best  scaling  captain  from  1883  to  1889, 
thought  it  important  to  find  out  and  keep  secret  the  positions 
where  big  catches  were  made. 

{}.  "  Had  you  any  object  in  not  entering  in  the  log  the  num-  i;.  ^x,, 
ber  of  souls  that  you  caught  ?     A.  Yes."  WufM. 

Q.  "  What  was  your  ol)ject  ? 

A.  "  Hecause  if  you  have  a  log-book  and  you   made  pretty 
good  cutchos  your  hunters  or  crew  may  get  hohl  of  tho  book 
and  take  the  positions  out  of  it,  and  going  on  board  another 
ship  thoy  would  give  it  to  them." 
40      Q.  "  Why  did  you  not  want  to  have  that  done  ? 

A.  "  Because  it  might  interfere  with  my  business,  I  wanted 
to  go  there  myself  again,  and  I  did  not  want  to  have  too  many 
vessels  around  me  in  the  sealing  grounds." 

Respecting  his  operations  in  1880,  Captain  McLean  in  his 
cross-examination  stated  : — 

Q.  "  Will  you  be  kind  enough  to  state  again  the  position  i!.  no, 
you  were  in  on  tho  12tli  July,  1880  ?  '''"'  '•"'• 

A.  "  This  should  be  the'  position  ;  about  55-37,  that  is 
where  tho  seals  were  caught  and  taken  in. 

Q.  "  And  the  longitude  167-8  ? 
50      A.  "  Yes,  sir. 

i}.  "  Now,  look  at  that  and  see  in  the  year  1885  on  that 
same  day,  what  was  your  position  ? 

A.  "My  position  was  latitude  55-46,  longitude  168-30. 

Q.  "  IIow  far  apart  are  these  two  positions,  about? 


62 


SEAUNG    GROUNDS    IN    HEIIRING    SEA. 


IIIU 


A.  "  Tliis  18  OH  tlie  l-2th  July? 

Q.  "Yea 

A.  "  Tliere  would  ho  iiiuo  inilos  (litlbreiK'c  of  latiliiilo 
probably  about  22  miles  (lifforoiu'o  of  loiij,ntu(le. 

(i.     What  would  bo  the  actual  dilfereneo  as  tho  crow  llios'' 

A.  "  About  20  miles. 

(J."  Take  iho  15th  Jul}',  188G,  and  say  what  was  your 
position .' 

A.  "  Latitude  55-25,  loni,ntude  1G7-57. 

Q.  "  I  see  you  cannot  ijet  tho  same  dav  in  exactly  in  188;'),  10 
but  takino;  botwoeii  the  12th  aiul  18th  of'  July,  1885,  how  far 
away  were  you  from  the  same  position  'i 

A.  "The  ditferenee  will  be  close  on  to  (iO  miles 

Q.  "That  will  be  the  farthest? 

A.  "  Yes,  sir. 

Q.  "Compare  any  day  in  August  that  you  like,  take  the 
iirstof  August,  wc  will  say,  how  does  your  position  in  1885 
compare  with  your  position  in  1880  on  the  1st  of  August? 

A.  "it  would  bo  about  22  miles  dill'erenco. 

(J.  "  Can  you  account  for  the  lact.  Captain  McLean,  whv  it  20 
was  that  you  seem  to   have  got  pretty  near  the  same  spot  in 
the  same  year  ? 

A.  "  Do  you  ask  me  why  ? 

Q.  "  Yes. 

A.  "  Because  I  used  to  want  to  go  over  the  same  ground. 

Q.  "  And  yon  were  catching  seals  there  ? 

A.  "  Yes,  i  caught  them  before  and  if  I  did  not  get  seals 
there,  I  would  go  farther  along. 

Q.  "  ]?ut  you  did  fmd  thoin  before  ? 

A.   "  Oh,  yes.  80 

Q.  "  And  you  found  them  in  the  same  quantities,  ilid  vou 
not  :  perhaps  better  in  188()  than  in  188;')  ? 

A.  "  Ves,  sir,  in  188(!  1  Ibund  more  seals  on  that  dav. 

Q.   "  And  all  through  the  year  di<ln't  you  fmd  it  betlcr  ? 

A.  "  Yes,  sir,  of  course,  in  I88ii  I  nuide  ii  >)rettv  good  catch 
in  July. 

Q.   "  And  you  got  some  .seals  in  August,  too  ? 

A.  "  Yes,  r  got  some  in  August. 

Q.  "  Taking  all  the  entries  of  the  position  ol' your  ship  in  the 
year  1885,  is  it  not  correct  that  you  were  sealing  in  188ti 
pretty  much  near  the  same  ground  as  in  1S85  ? 

A.   "  Well,  in  1885, 1  mad'e  a  pretty  fair  catch,  and  I  thought  -*"' 
1  would   go  over  the  same  ground   again  and  seal  where  I 
did  well  in  1885. 

Q.  "  Then  you  did  place  a  value  on  the  position  of  tlieshiji? 

A.  "  That  is  the  reason  I  kept  that  in  this  book. 
Q.  "  And  you  followed 
did  you  not  ? 

A.  "  In  1885  and  in  188(). 

"  Did  you  go  on  the  same  ground  in  1887  ? 
cs. 


that  out  successfully  for  two  \  ears 


(I 
A. 

Q. 
A. 

Q. 
A. 


'  Why  ? 

"■  Hecause  I  ex|iectc<l 

'  Did  vou  lind  them  ? 

•'  Yes.'" 


50 


lind  seals  there. 


And  again — 


It.  III. 

llIM'  I'lll. 


(J.  "  As  a  matter  of  liu't  now  w c  will  take  the^e  entries  I'or 
dune,  they  are  as  follows:  June  2,  151  seals;  June  Ji,  44 
seals  ;  dune  4,  2H  seals  ;  .lune  0,  (15  seals;  dune  7,  125  sJals  ; 
dune  8,  1!i7  seals;  .June  10,  172  seals;  .lune  11.  .'is  seals. 
As  a  matti'r  of  fact  none  of  these  were  taken  in  1887  ? 


m 


SEALINO    (lUOUNDS    IN    IJEIIIUNil    KKA. 


68 


80 


60 


A.  "  Tlioy  wore  taken  in  1880  hy  the  '  Miiry  Ellen  '  and  [ 
took  the  positions  and  places  then  in  that  hook  so  that  I 
eould  vel'er  to  them.  I  wanteil  to  hav(!  tlie  positions  of  where 
I  eanght  the  sinils.  It  was  eonsidered  prt'tty  good  ground, 
and  T  might  want  to  go  there  again." 

Cai)tain  Ii!aynor,  a  leading  witness  for  the  United  States,  li.  .V3i, 
stated  that  the  tir.st  time  he  went  sealing  in  1880  he  went  to 
Unimak  Pass,  and  north-east  to  St.  I'aul  Islands,  and  24  miles 
oil"  the  Islands.  lie  had  heen  tliere  lor  seals  l)ot'ore.  lie  found 
them  where  he  foim  !  then)  l.etbre.  Asked  as  to  his  position 
10  after  that,  he  answered,  ''  Well,  I  went  all  over  the  ground 
hetweeii  the  I'rihilov  and  Aleutian  Islands." 

Asked  as  to  1887  when  he  had  taken  800  seals  hefore  the 
28th  of  July,  where  he  caught  them,  he  answered,  "  F  caught 
them  very  nmch  on  the  same  ground  all  around  out  there." 

Pressed  as  follows  : — 

"Just  ahout  tiie  .same  ground  as  you  caught  them  in  1886?"  i.'.  ■">-':. 
lie  answered,  "Yes."     He  admitted  that  he  liad  taken  over '"" 
1,000  seals  ln'fore  he  was  seized  on  the  :25th  of  August,  and 
he  was  asked  again  : — ''  In   what  locality  did  you  get  that 
20  additional  number  of  seals  in  the  month  of  August?"  he  replied, 
"  Well,  I  got  them  in  about  the  same  grounil." 

Q.  "  Vou  caught  them  about  the  same  gnnmd  ? 

A.  "Yes. 

Q.  "  Yon  kept  working  around  in  about  tlic  same  ground  ? 

A.  "Yes,  sir." 

In  188!*  this  witness  was  again  in  the  sea,  when  ordered  out  n. 
his  position  was  about  170   west  longitude  and  55  north  lati 
tndc.     ,'Vsked  "  What    were   you    in  that  position   for?"  he 
answered,  "  I  was  there   to  look  for  seals  because  tiuit  is  the 
30  sealing  gi'ound  all  over  there." 

(J.  "Of  course,  and  you  went  wheri^  you  knew  tlie  sealing  i;. 
ground  would  be?  '"' 

A.  "  Why.  eertuinlv." 


••". 


iiiif  'A7. 


IIm.I. 


Tliis  witness  also  stated  that  he  had  never  gone  to  Behring 
Sea  witiiout  linding  seals. 

(\iptain  Miner,  a  witness  cidled  on  the  }iart  of  the  United  n.  Mr. 
Slates,    who   jiad    l)een    .sealing    in     l.'^87    in     i5eliring    Sea,   ""  '"■ 
stated  that  he  had  "  heard  of  good  grounds,  or  of  good  catches  i;.  Ms, 
having  been  nuide  entirely  around  the  islands  in  i'!l  directions 
^Q  from  them."     On    being  asked  "  (<ood  sealing  grounds?  "  he 
answered  "  Yes,  sir."      i'leferring   to    1887,  Oaptain  Mirier,   in 
cross-examination  poinled   out  that    when   he  got  tiews  of  the 
sei/.ureshe  was  scaling  from  ;>0to  70  miles  oil'  Bogoslotf  bearing 
soutii  south-cast. 

This  witness  was  asked  in  regard  to  his  sealing  trip  in  1800  I!.  ViS,  iin< 
and  whether  he  went  to  the  "  usual  grounds,"'  he  answered 
in  the  atlirmative  and  that  he  sealed  "entirely  around  the 
Islands"  Asked  as  to  another  occasion  when  scalinsr  in 
Ueliring  Sea,  w'nat  time  ho  reached  tlui  sea,  he  answered  : — "  I 
50  forget  the  date  1  reached  Ouiudaska,  but  1  reached  the  sealing 
ground  or  began  sealing  on  the  loth  of  .August." 


imm 


64 


SEALING   GROUNDS   IN    BEIIRINd   SEA. 


n.  liiil, 
liiir  :to. 


line  !l. 


K.  IMIi, 
lini'  L'li. 


U.  7-'l, 
Mill'  10»i. 


I!.  7l:;P, 

llllr  .Ml. 


I!.  7:tl. 
liiir  :;ii  in. 


Charles  llackett  gives  the  latitude  and  longitude  of  his  catch 
which  corroborates  the  idea  conveyed  bj'  the  charts  for  1889 
and  1890. 

The  Captain  of  the  revenue  cutter  "Richard  Rush,"  which 
made  seizures  in  1887  and  1888  was  examined  before  a  Con- 
gressional cunnnittee  ;  lie  stated  that  the  seals  pass  this  locality 
in  going  to  the  feeding  grounds  nearer  the  Aleutian  Islands. 
Referring  to  where  the  sealers  hunted  : — 

Q.  "  The  hunters  intercept  the  seals  as  they  go  to  and  from 
the  islands  ?  10 

A.  "  Yes,  sir,  that  is  what  I  understand." 

Captain  Hansen,  a  witness  called  on  behalf  of  Her  Majesty, 
an  experienced  sealer,  testified  that  he  hunted  to  the  south- 
ward and  westward  of  the  l^ribilov  Tslan  •*  about  GO  or  70 
miles  distant ;  after  that,  a  little  to  the  east ;  the  direction  was 
about  north  north-west  of  Unimak  Pass.  This  was  in  1888.  In 
1889,  he  sealed  southward  and  westward  of  the  Pribilov 
Islands. 

Speaking  generally,  in  1888,  1889,  and  1890  he  had  fished 
somewhere  about  tlie  same  place.  20 

Mr.  Crow-Baker,  in  giving  the  latitude  and  longitude  of 
the  catch  of  the  "  Triura{>h  "  in  1888,  corroborates  the  charts 
already  referred  to  as  showing  the  locality  where  seals  are 
cauglit. 

Captain  W.  E.  Baker,  an  experienced  sealer,  called  on  behalf 
Her  Majesty,  speaking  generally  as  to  what  part  ot  the  sea  he 
fished  in,  said  "  the  first  two  years  I  sealed  mostly  to  the 
southward  and  westward  ot  the  Islands  from  60  to  90  miles." 

In  1890  he  fished  the  first  part  of  the  season  to  the  westward 
and  southward  of  the  Islands  from  60  to  90  miles.    The  latter  30 
part  of  the  season  from  40  to  00  miles  east. 

Having  been  cross-examined  as  to  changing  his  jiosition 
from  time  to  time  on  re-ilirect  examination.  Captain  Baker 
cxiilained  that  in  1890  tlie  ilL^tanee  between  the  extreme 
points  where  he  lished  tliat  season  was  not  greater  than  150  to 
200  inili'S,  and  that  in  ordinary  years  he  ininted  over  a  sjiace 
west  north-west  and  south-west  ol  tiie  I'ribilov  Islands,  I'overing 
a  radius  of  100 miles;  and  that  notwithstanding  that  the  seals 
change  their  so-calied  liaunts  from  ^-ear  to  year  "  as  a  matter 
of  fact  they  are  always  in  Behriiig  Sea  somewhere  annind  40 
the  Pribilov  Islands." 

Cajitain  L.  McLean  shows  lliat  his  catch  of  isH.s  was  taken 
westward  and  southward,  and  westward  uftlie  Pribilov  Islands. 
Heconsi<lereil  eastward  of  that  loi'alily  the  best  sealing  ground, 
but  did  not  go  there  for  fear  of  being  seized. 

In  1889  be  was  on  a  more  favourable  grouml,  w  hirh  he  des- 
cribed to  be  a  <lirect  line  I'rom  Ounalaska  to  St.  i'aul.  "  My 
usual  sealing  ground  would  be  in  a  direct  lino  from  Ounalaska 
to  St.  Paul's  Island,  about  KIT'oU,  :tf)-20  from  .'>.">  l'.  to  r).V30." 
In  that  vicinity  he  explains,  the  most  liivourable  groumls  are  50 
found. 


■f 


I 


:l 


SRALIXd    ilHorNDS    TN    l!I5in!rN(i    SEA, 


(J5 


Cai>tiiiii  Warren  suys  that  it  is  a  coiimiou  tiling  for  the 
vessels  to  meet  on  the  sealing  grounds  and  he  nanu's  (|uite  a 
nniuber  that  he  saw  in  LS^d  in  !5ehring  Sea. 

Captain  Magncseii  speaks  of  the  sealing  grounds  as  being 
about  5.",  1(1  or  If,  ami  lti7.  Well  known  to  be  a  good  sealing 
ground. 

Having  established  that  the  sealing  grounds  in  Beliring  Sea 
are  well  known  and  easily  defined,  it  is  proposed  to  point  out 
how  plentiful  the  seals  were  in  those  sealing  grounds. 

TO  Captain  Warren  has  explained  the  advantage  of  sealers 
having  the  additional  mouths  afforded  by  the  sealing  in 
JkdiringSea  for  those  vessels  which  before  "l88U  operated  on 
the  coast,  and  has  stated  (ha!  notwithstanding  the  "  Thornton  " 
was  seized  in  188<!,  and  the  '•  Rustler"  did  not  go  into  the  sea 
his  other  vessels,  viz.:  '"Anna  Beck,"  "Say  ward,"  '  Grace" 
and  the  "  Dolidiin  "  in  the  season  much  shortened  by  the 
seizures,  cleared  above  expenses  about  §20,000.  Oue  of  the 
adidavits  used  by  the  United  Slates  at  Paris,  sworn  to  by  Anton 
Melovedoff,    who   liad    resided    since    1869  at   the   Alaskan 

■20  Peninsula,  and  who  wasiirst  chief  of  the  Island  Kadiak,  states 
that  "  from  1884  the  schooners  kept  on  increasing,  until  in 
1891  there  was  more  than  one  hundred." 

<'aptain  Miner  has  explained  in  his  evidence  that  sealino- has 
been  a  great  trade  on  the  Pacific  coast,  and  it  has  been  gro.ving 
since  he  iirst  joined  it. 

Again,  it  was  in  its  most  nourishing  condition  in  1887.  There 
were  more  in  the  business  in  1 880  than  in  1885;  it  took  its 
greatest  start,  however,  in  1887. 

Touching  the  (piantity  of  seals  to  be  found  in  the  sea,  the 
30  witness,  J.  II.  Douglass,  already  referred  to  in  the  prosecution 
at  Sitka,  gave  the  following  evidence  : 

"  During  this  season  from  May  till  November  the  fur  seal 
are  plenty  in  the  waters  adjacent  to  the  Pribilov  Islands  and 
are  migrating  to  and  from  these  Islands,  and  are  at  all  times 
very  plenty  between  Unimak  J'ass  and  said  Islands  in  a  track 
about  ;!0  miles  wide,  which  seems  to  be  their  highway  to 
and  trom  saiil  Islands.  The  schooner  "  Carolena "  and  her 
boats  when  seized  were  direclly  in  this  track.  I  was  present  at 
the  time  of  seizure." 


40      Anton  Melovedoff,  already  described,  in  his  deposition,  sub- 
mitted to  the  Paris  Trihumd  by  United  States,  says  :— 

"These  scliooners  care  very  little  about  coming  to  the 
Islands  to  take  seals  on  the  land,  for  they  only  have\)  hover 
around  the  iishing  banks  from  oM  to  L'Ou'milJs  away  and  take 
all  the  seals  they  want." 

Mr.  William  Urennan,  one  of  the  United  States  deponents 
at  the  Paris  Tribunal,  tostiiics  as  follows  : 

"  Nearly  all  would  lose  money  if  the  liunting  was  conlined 
to  the    Pacific   Ocean,  but  they   deiicnd  on   the  iJehring  Seu 


66 


SEALING    (IROUNDS    IN    BKIIRINO    SEA. 


catch,  where  the  seals  are  more  pleiitifnl  and  occupy  ii  more 
limited  space  as  a  feeding  ground." 

In  the  United  States  case  at  Paris,  that  Government  used 
a  report  of  Mr.  C.  M.  Scammon,  a  naturalist,  who  was  also  an 
officer  in  the  revenue  marine  sei'vicc,  in  which  he  says  : — 

"  Their  food  is  mainly  fish,  and  they  are  naturally  found 
where  that  is  most  ahundant.  Seal-hunters  say  and  statistics 
show  that  where  fish  are  most  plentiful,  as  in  latitude  55°  to 
5G^  north,  in  Behring  Sea,  on  the  Shuniagin  Banks  ofl'the 
Alaskan  Peninsula,  and  off  the  entrance  to  the  Straits  of  Fuca,  10 
there  the  best  catches  of  seals  are  made." 

Writing  to  the  Secretary  of  the  Treasury,  special  agent  G. 
R.  Tingle,  on  August  18,  1880,  reporting  the  seizure  of  four 
sealing  schooners,  commends  Captain  Abbey  for  his  active  and 
good  work,  "  if  he  should  be  obliged  to  leave  the  waters  " 
before  the  arri\  al  of  the  "  Bear  "  to  relieve  him,  "  it  will  be 
unfortunate  as  the  fleet  of  schooners  will  play  havoc  among 
the  seals." 

Captain  O'Leary,  already  referred  to,  examined  as  to  1886, 
was  asked  "  ITow  did  you  find  the  seal  as  to  quautity,  when  20 
you  were  sealing  there  toward  the  end  of  .lulyV"  to  which  he 
answered  "  T  found  them  as  plentiful  as  I  wanted  them." 

Captain  Cox,  an  experienced  sealer,  says  he  never  went  on 
a  voyage  without  finding  seals.  Cotsford,  one  of  the  hunters 
on  the  "  Carolena,"  seized  in  188(i,  and  called  by  the  United 
States,  on  his  cross-examination  says  the  "  Carolena "  was 
doing  very  well  at  the  time  of  the  seizure. 

('aptain  Hansen  asked  "  At  the  time  you  left  for  home,  when 
the  '  Onward  '  '  Thornton  '  and  '  Carolena '  were  seized,  were 
you  in  good  sealing  ground '!''  answered,    "  Yes,  the  best  I  30 
had  been  in  for  some  time.     I  was  getting  from  50  to  80  seals 
a  (lay  with  three  boals,  shooting  with  rifles."' 

Mr.  Alexander,  called  by  the  United  States,  and  already  re- 
ferred to,  on  his  cross-examination  stated  that  he  found  a 
larger  quantity  of  seals  in  July  and  August  in  l(Si)5  than  he 
did  in  1894.  He  found  a  considerable  quantity  in  both  years 
both  in  August  and  September;  he  [lassed  through  them  in 
July  on  his  way  to  the  hunting  grounds. 

Mr.  Bragg,  who  was  a  hunter  for  8  years,  testifies  that  dur- 
ing that  time  he  has  individually  killed  thousands  of  seals.        40 

Captain  Jacobson  testified  : — "  In  those  days  it  did  not  take 
much  of  a  hunter  to  get  seals,  because  seals  were  very  plentiful." 

Captain  Shepherd,  on  the  examination  before  the  Congres- 
sional committee,  stated  that  he  had  estimated  in  1887  the 
sealers  would  have  taken  20,000  more  seals  had  no  seizures 
becTi  made.  "  Wi'  i':i[itured  15  vessels,  on  board  of  which  we 
found  about  1*2,000  skins." 


DURATION  OF  THK  SEALING  SEASON  IN 
BEIIRING  SEA. 


In  dealing  with  the  ([iicstioii  of  tlie  number  of  seals  which 
may  be  taken,  it  is  important  to  consider  the  length  of  the 
season  in  Hehring  Sea.  It  was  eontondeil  by  the  Uniteil  States 
at  the  hearing  that  the  sealing  ends  about  the  20th  August, 
and  that  in  1886,  at  least,  there  was  a  common  understanding 
among  the  masters  of  the  schooners  that  they  should  begin 
the  homeward  voyage  not  later  than  that  date. 

10  The  evidence  does  not  support  the  theory  of  any  such  under- 
standing, and  it  may  l)e  further  observed  that  although  prior 
to  1886,  a  very  limited  amount  of  sealing  had  been  done  in 
Behring  Sea,  yet  many  whalin:f  and  walrus-hunting  voyages 
had  been  made  there.  A  great  deal  of  information  had  been 
thus  obtained  resiiecting  the  character  of  the  weather  usually 
prevailing  in  that  locality  ;  the  ordinary  conditions  of  seal  life 
in  those  waters  were  also  known.  It  is  submitted  that  these 
facts,  together  with  the  proof  which  was  adduced  respecting 
actual  sealing  operations,  completely  negatived  tlie  contention 

■20  of  the  United  States  as  to  the  length  of  the  season. 

The  seals  begin  to  enter  the  sea  about  the  end  of  June  in 
each  year,  and  do  not  leave  the  islands  permanently  until  about 
the  month  of  November.  The  United  States  statute  under 
which  the  vessels  were  seized  made  it  unlawful  to  catch  any 
fnr-seal  in  the  months  of  June,  July,  September  and  October 
in  each  year. 

Theodore  Magnesen,  a  witness  called  by  the  counsel  for  the 
United  States  to  prove  the  catch  of  the  "  Sea  fjion  "'  in  1890, 
states  that  in  that  year  out  of  a  catcli  of  700  seals,  lie  took  -'JOO 

HO  in  the  month  of  September,  and  that  he  continued  sealing  until 
the  14th  of  tliat  month.   He  siiys  : — 

'•  Ion  can  get  lots  of  seals  in  September."  i;. 

So  also  the  witness  Steele  called  on  behalf  of  tlie  United 
States  to  prove  tlie  catch  of  certain  vessels,  says  that  there  are 
some  iine  days  in  September  and  that  some  tine  catches  are 
made  in  that  month. 

W.  E.  Baker,  who   came  from  Nova  Scotia  in  the  schooner  u. 
"Viva"    in    18SS,    and    went    scaling    for    the    first    time 
in  that  year,  remained   in  the  sea  until  the  2n(l  September, 
40  wlicn  having  made  a  catcii  of  over  1600  seals  with  live  boats, 
lie  returned  to  Victoria. 

This  master  also  in  the  same  vessel  in  18!I0,  took  -MO  seals 
in  September,  his  total  catch  that  year  being  2015. 

.lacolisen,  who  was  sealing  in  a  small  schooner  of  l;{   tons,  if. 
called    the    '"  Mountain   Chief,"    inilitferently    constructed   by 
the  Indians  of  the  coast,  also  remained  in  tlie  sea  in  1888  until 
the  7tli  September  without  dillicult  v. 

07 


1 1.  Kiel 


1..  r-Ji. 


7'j;!,  liiif  1.'! 


'^ 


68 


SEAUNO    SEASON    IN    liKliniNO    SKA. 


K.  p.  1727, 
line  ."i7. 


n.  1HS3,  liiK' 
III). 


H.  I 
:itl, 


. :«:.,  p. 

liiii'  l>. 


Til  18S7  tliuro  is  evidoiirc  rogardini:;  tlie  iiiovcnioiits  of  14 
vcsscIhi.  TlicM-c  lire  only  four  casos,  vi/  ,  tin'  "  Favorite," 
"  VaiKlerbilt,"  "  Hlaek  Diainoiul,"'  and  "  Mary  Klk'ii," 
in  wliieli  there  is  not  evidence  of  direct  iiiterforence  in 
tlio  voyaj^e  by  the  seizures  then  hciiiii'  made.  Of  these  four, 
Captain  Meyer  of  the  "  Vaiidcrhilt,"  who  was  called  on 
behalf  of  the  United  States,  remained  in  the  sea  until  the  llth 
September.  His  last  lowering  day  was  the  2lHh  of  Ani,ni8t. 

The  "  IMark  Diamond "    left  on    the    loth    of  August,   an 
exce2»tionally  early  date,  and  thouyli  the  icasoii   is  not  stated  10 
in  the  evidence,  it  is  more  than  probable  that  her  lua.ster  was 
iniluenced  by  rumours  of  the  seizures. 

The  "  Mary  Ellen  "  left  the  sea  on  the  lllth  August.  She 
had  then  a  catch  of  2500  seals,  of  which  1530  had  been  taken 
in  the  sea  and  on  the  day  before  she  left  took  80  seals. 
Having  regard  to  the  evidence  given  it  is  more  than  probable 
that  this  vessel  had  heard  of  the  seizures  tlien  taking  place. 
llcr  movements  were  doubtless  regulated  l)y  a  desire  to  save 
her  catch  from  contiscation. 

Tlie  "  Favorite  "    remained    until    the   27th    August,  and  20 
started  lionie  on  tliat  date  because  the   vessel   was  short  of 
water  and    could    not   continue  operations  without  going  to 
some  port  for  a  sup[Oy. 


u.  p. 


H.  p.  lilin, 
liiir  10. 


|{.  p.  1120. 
tin.'  !.■). 

H.  p.  i;i.")l, 

llllr  till. 


I!.    702. 


In  1888  six  vessels  are  mentioned.  The  "Viva,"  and 
"Mountain  Chief,"  remained  until  tlie  2iid  and  7th  of  Septem- 
ber respectively  as  previously  mentioned.  Captain  L.  McLean 
on  the  "Favorite"  sealed  until  the  27th  August.  The 
"  Annie  C.  Moore  "  left  on  the  20th  August.  The  "  Juanita  " 
began  her  homeward  voyage  on  the  20th,  in  pursuance 
of  instructions  given  to  her  ca|itain  by  her  managing  owner  30 
before  she  left  in  the  spring,  wliich  instructions  were  based 
upon  information  given  by  Mr.  Milne,  collector  of  customs  at 
Victoria,  that  there  would,  be  no  seizure's  between  the  10th  of 
July  and  20th  of  August  that  year. 

The  only  other  vessel  mentioned  is  the  "Triumph,"  the  date 
when  she  left  the  sea  is  not  stated.  Her  last  sealing 
day  was  20fh  of  August.  ,\s  none  of  the  mend)ers  of  her 
crew  could  be  obtained  to  give  evidence,  the  statement 
of  her  catcli  is  found  in  the  testimony  i)f  Mr.  K.  C.  Baker,  a 
part  owner  of  the  ship,  and  he  had  no  knowledge  of  the  reason  40 
why  she  left  the  sea. 


\i.  721. 


In  I  BSD  there  is  a  record  of  1(1  vessels.  Of  these  there  is 
direct  evidence  of  ihterfereiue  in  all  except  in  three  instaiu^es, 
the  "Viva,"  "  .Maggie  Mac '"  and  "Beatrice." 

With  reference  to  the  "  \'iva,"'  she  was  under  the  command 
of  Ca[itain  W.  E.  Baker;  by  the  21st  of  August  he  had  made 
a  catch  of  2180  seals,  and  left  the  sea  at  that  date.  There  is 
no  direct  statement  that  he  had  at  that  time  received  any 
knowledge  of  the  seizures,  but  it  appears  that  hesjiokea  num- 
ber of  schooners  in  -inly  and  August,  and  having  reference  to  jq 
the  movi'inents  of  this  master  in  other  year.s,  it  is  not  probable 


SEALINO   SEASON    IN    BEIIRING    SEA.  69 

that  lie  would  have  returned  at  so  early  a  date  unless  he  liad 
some  reason  to  h'ar  that  his  voyage  would  he  interl'ered  witii 
hy  the  cutters,  and  therehy  cause  the  loss  to  his  owners  of  the 
very  good  catch  which  he  hail  made. 

The  "  Maggie  Mac"  left  the  sea  on  the  25th  August,  hut 
lier  master  is  dead,  and  the  nniuher  of  her  catch  had  to  he 
ol)taiii(!d  from  the  witness,  Iver,  who  had  no  knowledge  of  tlie 
time  on  which  she  hegan  her  homeward  voyage. 

Tlu!  "  Beatrice"  did  not  hunt  after  the  13th  August,  aa  she 
10  lost  three  canoes  on  that  date  and  spent  some  time  in  looking 
tor  them.  She  had  a  crow  of  Indians,  and  they  ajipear  to 
have  hecome  so  anxious  an  account  of  the  loss  of  their  com- 
rades that  the  captain  decided  to  leave  the  bea  on  tlie  20th. 

The  year  1890  was  a  stormy  season  on  the  whole,  yet  out 
of  the  IG  vessels  mentioned  in  the  evidence  as  sealing  in  that 
year,  six  remained  until  the  following  dates,  vi7,.: — 

"  Sea  Lion  " 14th  September. 

"Viva" 12th  " 

"Ocean  Belle" fith  " 

20          "  Juanita " 2nd  " 

"  W.  P.  Sayward  " Ist 

"  Tenelopc" 30th  August. 

"  E.  B.  Marvin  " 31st  " 

It  is,  therefore,  estahlished  that  the  habits  of  the  seals,  and 
the  weather  ordinarily  jirevailing,  would  permit  the  vessels 
engaged  in  sealing  to  carry  on  operations  until  well  into  the 
month  of  Septoml)er,  if  it  was  necessary,  in  order  to  complete 
their  catch. 

Further  it  appears  that  it  was  part  of  the  plan  of  the  owners 
30  of  the    vessels   seized    in    1886   to  continue  sealing  for  that 
period. 

In  the  case  of  the  "  Carolena  "  it  was  proved  that  she 
was  supplied  with  an  outfit  of  provisions  to  last  for  a 
long  continued  voyage.  The  witness,  Muiiger,  says,  in  cross- 
examination  : — 

"I  knew  that  there  was  lots  of  provisions.  The  ship  was 
full  of  provisions,  piled  up  so  that  you  could  hardly  get  round 
on  account  of  them.  There  were  great  quantities;  there  was 
lots  of  food." 

40      And  he  also  says  : — 

"  In  the  sea  the  captain  talked  of  going  home  about  the  end 
of  the  month  (of  August)." 

in  the  case  of  the  "  Onward  "  Mr.  Spring  says  : — 

"The  instructions  (to  his  captain)  were  to  the  effect  that  he 
should  proceed  to  Behring  Sea,  and  continue  there  as  long  as 
possible,  and  to  be  back  some  time  in  the  month  ofSeptember, 
at  any  rate  to  be  guided  in  a  measure  by  (Japt.  McLean,  on  the 
schooner  "  Favorite,"  at  that  time  they'had  agreed  to  meet  in 
Behring  Sea." 

50  Referring  to  the  case  of  the  "  Favorite  "  lie  says,  lie  does 
not  think  there  were  any  special  instructions  given,  us  he  took 
it  for  granted  that  Oapt.   McLean  being  an  interested  party 


i;.  iiii;. 


I!.  |..  i;7i, 

lilU'    III. 


i;.  |i.  li.-i.j. 


I{.  |>.  liSIt, 
Mill' 21. 


U.  |>.  S(!4, 
liiii-  30. 


I!.  :>.  l.'ill'J, 
liiii'  (ill. 


70 


SEALING   SEASON    IN    UEIIKI.Vtl    SEA. 


H.   1 1.   II  PL', 

line  r>r). 


K.  p.  402. 
liiii'  l>il. 


K.  p.  4111, 
line  50. 


U.  |..  ii;l', 

litli'  ."lO. 


I!.  |..  L'34. 


i;.  11,  !iiM(, 


I!.  |>.  TiKi, 
liiii'  l.'i. 


would  remain  as  long  as  ii()s,siblo.     lie  is  certain  lliat  iio  and 
Mol.ean  had  an  undorHtanding  to  that  etibct. 

And  Captain    McLean,    speaking   of  the   voyage   of  that 
schooner,  savs  :  — 

Q.  "  W^'aa  it  not  your  inrention  to  remain  sealin.r  for  as  lone 
as  the  sealing  would  he  good  ? 
A.  "  Yes,  sir. 

Q.  "  And  as  long  as  there  would  be  seals? 
A.  "  Ye-s,  as  long  as  I  would  he, justified  in  sealing  tliere. 
Q.  "And  you  had  enough  provisions  to  enable  you  to  do  that  ?  10 
A.       \  es,  r  believe  I  did. 

Q    "  And  you  could  have  remained  until  the  l.>^t  of  Sentem- 
ber.  ' 

A.  "  Yes,  sir,  if  the  weather  would  permit." 
It  is  true  that  this  witness  when  called  on  another  occasion 
in  his  evidence  in  ciiief   state.-*,  when   asked  whiit  he  would 
call  the  end  of  the  sealing  season  in  JJehring  Sea  in  the  vears 
1886  and  1887:— 

"  About  the  20th  August  I  would  consider  the  end  of  the 
season.     1  used  to  leave  the  sea  then  "  oa 

But  a  moment  alter  he  gives  an  answer  rather  incon,si8tent 
with  that  when  he  says  : — 

"The  weather  used  to  be  bad  and  we  figured  on  getting 
hack  about  the  last  August  and  the  10th  of  September.  We 
usually  outfitted  for  that  time.  Of  course  we  could  ren)ain 
there  for  a  longer  time,  but  probably  the  weather  would  not 
justify  us  in  doing  so." 

Later  on  in  his  direct  examination  he  says  :— 

"  I  have  been  there  as  late  as  September. 

Q.  "  Did  you  have  .my  sealing  in  September?  oa 

A.  "  Yes,  sir  ;  we  had  some. ' 

(-1  "Was  that  exceptional,  remaining  over  until  Seiitem- 
ber?  ' 

A.  "  Yes;  unu.sual." 

During  the  cross-examination  of  this  witnes.-  a  deposition 
made  by  him  at  San  Francisco  on  February  1st,  18!t2,  was  put 
in,  where  in  answer  to  the  i|uestion  :  "  When  do  vou  call  the 
season's  catch  over?  "  he  said  :  "  About  the  1 1th  September." 

Referring  again  to   1886,   it  is  proved    tliat  Cai>tain   War- 
ren's  fleet   in    the    Behring   Sea  that  year   consisted    of  the  40 
ves.-^els:  the  "Thornton,"   "Anna    Deck,"    W.    D.  Sayward  " 
"Grace"  and  Dolphin." 

Speaking  of  his  plans  for  remaining  in  the  sea,  he  says  :— 

"  My  intention  was  to  have  stayed  in  the  sea  until  about 
the  end  of  September,  and  taking  the  supplies  1  had  I  am 
able  to  say  that  there  was  iilenty  to  have  held  out  for  the  full 
season.     It  was  so  arranged." 

E.  I'.  ADner,  a  witness  called  for  the  United  States,  speak- 
ing of  the  outfittiiig  of  the  "Penelope"  for  the  voyage  of 
1887,  says:  '    * 

50 

"  I  fitted  out  in  February.  I  expected  to  make  about  an  8 
or  !i  inonth.s'  crui,-^e.  That  is  the  usual  length  for  which  I  fit 
out  for  seal  hunting." 


SEALINO    SKASON    IN    BKIIUINd    SEA. 


71 


Q.  "  Wliei)  you  speak  of  a  nine  months'  tTuiBi',  m  it  in 
Marcli  you  usimlly  tit  out? 

A.  "  No,  sir  ;  wc  UHiiiilly  got  in  l)y  OctolxT  anyway. 

Q.  "  At  any  rate  in  this  year,  1887,  yon  fitted  out  for  that 
period  V 

A.  "Yes;  I  fitted  out  in  February." 

lu  the  evidence  of  O'Leary,  master  of  tiio  "  Pathfinder  " 
in  1880,  the  following  occurs  : — 

(I.  "  IIow  long  were  you  provisioned  to  stay  and  how  long  li.  |i.  .'ii-'. 
10  did  yon  expect  to  stay  in  the  sea  when  yon  went  there?  Imm-  ii. 

A.  "  1  intended  to  stay  until  about  the  Ist  tieptcmber.'" 

lie  then  states  that  he  left  on  the  4tli  August  hearing  of 
the  seizures  from  the  scliooncr  "  Sylvia  Handy." 

In  answer  to  the  question  how  long  ho  intended  to  stay  in 
1887,  he  says:— 

"  I  intended  to  ^tav  until  about  the  Ist  September."                li-  \<-  -'!«. 
•'  '  li in. 

And  explains  that  he  loft  on  the  17tli  August  on  account  of 
getting  too  close  to  the  track  of  the  seizing  cutter. 
And  further  on,  in  cross-examination  : — 

20      Q.  "  Is  it  not  a  matter  of  fact  that  yon  came  homo  because  u.  p.  -.mki, 
the  weather  was  rough  V  '""'  "• 

A.  "  No,  no." 

Q.  "  And  that  you  could  not  catch  any  seals  because  of  the 
North-westers  ? 

A.  "  Wc  generally  get  good  weather  there  in  August. 

Capt.  Bucknam,  examined  in    the   case  of   the  "Ariel," 

says  : — "  We  gencnilly  get  good  weather  there  in  August." 

Q.  "  You  say  that  whaling  vessels  had  told  you,  that  there 
was  fine  good  weatVier  in  Behring  Sea  in  October. 
30      A.  "Well,  I  have  heard   it  on  whaling  vessels,  and  I  have 
heard  it  for  the  last  twelve  years." 

The  evidence  therefore  instead  of  disclosing  a  general  idea 
)>revailing  among  sealers  that  the  weather  would  not  permit 
thom  to  remain  longer  than  the  middle  of  the  month  of  August, 
shows  that  witli  reference  to  the  vo:-sels  seized  in  188G, 
provision  was  made  for  a  much  more  oxtendod  stay,  and 
that  the  voyages  were  l)egun  with  the  determination  to  remain 
as  long  as  the  weather  would  [)ermit. 

With  reference  to  the  actual  wouther  of  1886,  there  is  satis- 
40  factory    evidence    that  it   was  a   I'avourabie  season,  and  that 
ojierations  could   have  been  continued  to  as  late  a  date  as  we 
liave  a  record  in  any  year. 

Laclilan  McLean  says  : — 

Q.  "And  the  weather  was  very  uncertain  in  188(3  and  1887, 
was  it  ? 

A.  "  No  ;  1880  was  an  extraordinary  tine  season." 

Witness  liragg,  of  the  "Mary  Ellen"  says: — 

Q.  "  Was  that  a  stormy  August  or  just  ordinary? 

A.  "  Just  an  ordinary  August." 
50      Ramlase,  who  was  on  the  "  Theresa,"  says  : — 

"I  know  wo  didn't  have  any  real  bad  weather  for  the  year :  n.  \<.  am, 
it  was  what  I  should  call  a  good  year."  lim4i). 


li.  p.  'Mi, 

Mill'  ;<3. 


'ii 


72 


iEALINO    SKASON    IN    lIKIIIUNd    ,«1;A. 


If.  |i.  :m>, 
I  nil'  "i."i. 


li.  p.  17L'; 

lliii'  41). 


I!,  p.  L'tid, 
line  M, 


i:.  |..  ■jii.i. 

lilM'    I. 


liiitur  on  lio  oxplaiiirt  tliiil  t\uy  Icll  aliout  llic  i^otli  Au^riist, 
oil  aceoimt  ofbuiii^  rihort  of  pruvUioiid,  uml  tliat  they  did  not 
liivvo  any  bad  weather  going  hoiiu'. 

It  may  he  urged,  tliat  nearly  all  the  vesdela  loft  the  .sea  in 
1880  at  an  early  date  in  the  month  of  August.  Thin  eircuin- 
stanco  is  easily  explained. 

Appended  to  thin  portion  of  the  argument  is  a  talile, 
showing  the  number  of  vessels  reporteil  in  the  evidence  as 
sealing  in  the  years  1880-1 8110,  in  I'eliring  Sea  and  the  time 
ami  circumstances  under  which  they  left.  \\y  reference  to  10 
this  table  it  will  appear  that  out  of  the  14  vessels  reported  in 
1880,  oidy  two  British  vessels  and  one  American  schooner 
appear  to  have  finished  their  season.  In  every  other  case  the 
vessel  was  either  ceized  or  molested,  or  had  its  voyage  inter- 
rupted by  some  untoward  event.  Ihu-e  also  it  is  important  to 
note  that  a  witness  called  by  the  ITiiited  States  to  prove 
a  catch  in  that  year  was  Captain  Meyer  of  the  '•  V'anderbilt," 
and  he  states  that  he  remained  in  the  sea  until  the  :5l8t 
August,  and  that  his  last  lowering  day  was  the  SOth  August. 

With  reft'rence  to  the  vessels  which  completed  tlu'ir  voyages  20 
undisturbed,  i^  appears  that  the  "Mary  Kllcn  "  left  about  the 
25th  day  of  August,  but  this  vessel  had  by  that  time  made  a 
large  cateb,  and  was  therefore  ready  to  return  at  any  moment. 

Bragg  says : — "The  caiitain  said  the  first  north-wester  ho 
would  get  he  would  stt'cr  for  home." 

And  in  re-examination,  speaking  of  the  weather  on  the  day 
they  began  their  return  voyage,  he  states: — 

"To  the  best  of  my  recollection,  a  little  after  daylight  in  the 
morning,  the  captain  came  on  deck.  The  wind  was  to  the 
westward  an  I  he  told  nie  to  put  the  wheel  up  and  set  the  mam  go 
sail  and  keeji  her  off.  He  ga\e  the  course,  wlTu'li  1  forget  now, 
but,  he  said  to  set  the  iiku'i/  tuiimnsl  slin/  snil  and  that  night 
we  were  down  the  pass.'' 

(^    "  What  kind  of  a  sailing  brec/.e  did  yon  have  that  day?" 

\.  "  All  the  wind  slu'  could  stagger  on  with." 

(J.  "  A  favourable  wind  ': "' 

A.   "Yes." 

It  <loes  not  by  any  means  follow  from  tlii~,  that  a  skilful 
navigator  such  as  (Captain  McLean  is  admitted  to  Ix',  would 
have  considered  that  weatlicr  suflicicnt  to  drive  liini  Immc  if  his  40 
catch  up  to  that  time  had  l)een  unsatisfactory.  On  the  <'ontra- 
ry,  it  is  a  common  sense  proposition  to  assert  that  if  there  had 
been  any  inducement  to  stay,  wind  of  the  strength  referred  to 
would  not  bavi^  deterred  him  from  continuing  his  sealing 
voyage. 

With  reference  to  the  "  Say v':'.vd '"  the  evidence  of  the 
captain  was  introduced  b}'  means  of  a  deposition  taken  out  of 
court.  The  witness  was  asked  no  fpiestion  as  to  his  rea.son  for 
leaving  the  sea,  but  he  remained  until  the  -ith  August.  It  is 
very  probable,  however,  having  regard  to  the  locality  in  which  .^io 
he  was  operating,  that  some  knowledge  of  the  seizures  had 
come  to  him  prior  to  that  date. 


SBAKlNd    SIOASON    IN    BHIIItlN'd    SEA. 


78 


If. ;..  ."ia:, 

liiii'  10. 


lim'.l. 


11.  |..  7:tl. 

lini-  (li 


11.  |i.  I'Jll. 

lillr  10. 


li.    \>.    I  |M(I, 
lilM'    III. 


Tlio  woivtluT  (luriiii;  1887  was  also  t'avoiiral>lo  for  soaliiijj. 

McICicl,  wlio  wart  oil  tlio  "  Heatrico  "'  and  startod  lioiiic  about 
the  last  of  July,  May.i  it  was  tiiio  wcatlier  when  he  left. 

Mocs,  who  was  on  the  "K'ate"  and  left  the  Hca  about  the 
2i'ith  Auf^ust,   says  tlie  sealing  season  was  not  over  then. 

La(!hlaii  McLean,  master  of  the  "Favourite,"  had  14  lower- 
ing days  from  the  10th  day  of  'Inly,  when  he  iiegan  sealing, 
until  the  end  of  the  month,  and  between  the  Ist  and  2r)th 
August  had  !!•  lowering  days. 
K)  The  •'  Ada  "  had  2!t  lowering  dnys  from  the  Ititli  .Inly  to  the 
2.')th  .August  inelusive,  and  the  little  "  Triuiniih,"  sealing 
muL'h  further  to  tlio  westward,  hunted  11*  days  beginning  on 
the  Sth  and  ending  on  the  2.')th  of  August. 

The  reported  i  rhes  also  of  other  schooners  during 
the  time  in  which  they  were  allowed  to  remain  on  account  of  the 
seizures,  is  coiubisive  on  the  point  that  during  that  [leriod  at 
least  good  sealiiig  wi'ather  prevailed  generally  throughout  the 
sea. 

20      Tt  is  also  clear  that  the  weather  of  1888  and  1889  was  very 

similar  to  that  of  1SSG  and  1887. 

Ill  1888  there  is  not  a  groat  deal  of  direct  testimony  on  the  if.  i'.Vi.m. 
11.  -i-i  -ii       iiiii."iii. 

liomi,  very  few  vessels  being  mentioned   m   the  eviaence,  but 

it  is  shown  that  Capt.   W.  K.  Baker  on   tho  "  Viva  "   had  1:5 

lowering  days    between  the  9th  and  28th  duly  and  his  boats 

were  out  19  days  in  August. 


f  :   I 


'li 


It.  |.. 

liiir 


i;.".i. 


I!.  I 

liiii' 


.  711, 
1". 


The  operations  of  the  following  vessels   indicate  tiie  state 
of  affairs  in  1889. 
30      Tho  "  Mary  KUen  "  bad  Idlowering  days  in  August  between 
the  Ist  and  25th  when  she  stopped  sealing. 

The  "Ariel"  bail  1:5  lowering  days  between  the  14tb  and 
30th  of  July  ;  but  of  these  the  ItJtli,  1 7th,  19th,  ilst  and  24th 
were  not  full  days.  On  the  :50th  she  lost  a  boat  and  spent  some 
time  in  looking  for  it;  between  the  5th  and  18tli  August  i;.  m..  iiui.'i, 
there  were  11  lowering  days;  but  the  5th,  lOtli,  ItJthaiid 
18th  were  not  full  days.  She  left  the  sea  on  the  18tb 
fearing  seizure. 

Olson,  who  was  master  of  the  "  Anna  Week,"  says  that  the 
40  weather  in  July    was  fair,    especially  the    latter  end    of  it  and 
that  the  whole  of  August  was  good  sealing. 

Tho  "Viva"  lowered  21  days  between  the  Utb  and  30th  of  I 
July,  and  1)  da^'s    between  5th  of  August  and  the    21st  on 
which  latter  day  the  return  voyage  was  begun. 

The  "Juaiiita"  was  seized  on  the  31sl  of  Jul,\.  She  began 
sealing  on  the  3rd  and  between  that  and  the  30lh  had  17 
lowering  days. 

The  "  Favourite  "  entered  the   sea  about  tho  13th  of  July, 
and  from  that  day   to  the  end  of  the  month  had  15  lowering 
50  days  ;  in  August  there  wore  10  lowering  days  up  to  the  25(11 
when  she  stopped  sealing. 
«  s— 10 


I;.  |..  7i:i. 


li. 

liih 


li.  I 


Kill. 


III. 


74 


SBALINfl    SKAHON    IN    llEIIKIXd    SKA. 


I!.  ,..  7M. 

llIM'    1(1. 


linr  .'Id. 


('apt.  fox  uniR.  '•  Sappliiiv  "  liml  :.'l  lowrriiij,^  iliiys  in  .liily 
Mwoeii  the  i^lli  aii<l  ihc  .miiI  ,.f  tlio  niniitli.  IIo  di'd  ii,,|  n.-al 
ill  Aiiuiist,  bciiii;'  afraid  of  sci/mo. 

'I"ii(i  ".Vliniuo"  Htayi'diiiitilthclsdi  ,\iii.||,.<(.  .\Iiii.'ii,.s..ii  wish 
"\Vf  liiid  very  fiiio  woiithcr.' 


ft  will  1)0  sctMi  hy  ivfcM-oiici!  to  tliat  part  of  tlio  :irL,niiii(Mi(  in 
wliicli  till- testimony  rclalini.;' to  iho  ..JaiiiH  of  tlio  piirtinihir 
Hcliooiiors  i.M  disciiss.Ml  ill  d,.(ail.  tliaf  in  nrarlv  all  ilioca.-ics 
rtulKsciiKMit  to  IHM;  tlu.  sHiooiu'r.<  woiv  piovi.-ioiird  and  ciiiip- 
I>e(l  witli  tlio  spiM'ial  iiKcnlion  thai  tli.'y  should  ivniain  in  the  ,„ 
.scii  for  the  whole  tiiiu',  diiriiii;-  wliirli  scalinir  c.nld  l.o  siiuccw- 
I'lilly  promriitoil. 

The  contoiilion  of(ircat  Britain  therctoro,  is,  that  in  arri- 
viniralan  .■stiiiiatc  of  tho  catch,  which  the  vchscIs  nci/cd  or 
warncil  would  prohal.ly  have  made  if  not  interfered  wilh,  it 
should,   a.s  a  .starting  point,   he  .lutei  mined  that  tliev  would"  in 

each  case  havocontini.ed. sealing  under  the  favoiirahlo'condilioim 
ol_ weather,  proved  to  have  heen  existing,  until  an  near  tho  end 
ofSeptomlier  as  would  have  been  necoa.sury  to  aeeou,plish  a 
natisfaotory  catch. 


SBAMNO   8UA80N   IN    lllillRINd    SKA. 


76 


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SEALINd    SEASON    IN    I!E1IKIN(1    SEA. 


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MI'7ril()|)F()l!('()MlM^TIX(;  THE  KSTI.M  ATKI>  CATCH. 


Ill  I'stiiiiatiiiL;'  tlio  iiuiiibcr  of  skins  wliicli  would  |irol)alily 
Iiavc!  been  taken  liv  tlir  sclioonors  seized  or  wai'iied  in  the 
dilleri'iil  vrars,  flie  C()iriiiiis>ioiiers  will  donlilless  iiaxc  re<;ard 
to  tiie  inovc'nients  of  tlie  otiier  w.-sels  wiiost'  vova^Ts  are 
mention  I'd  in  tiieeviden<'e.      In  making  this  eon  1 1  larison  it  must 


lie  lionie  in  niiml 
rel'erreii  lu,  a>  a 


thai    li.d 


hdiansni    canoes  did  nut.  in  I  he  years 
rule,  fake  .!s  nianv  seals  as  wiiite  men  huntiiii)- 


in  boats,      it    is   sliowii   that    i.  >ats  took  about   one-tliird  i 


lime 
10  liiaii  an  ei|iial  iiiiiiibia-  or<'aiioe.s. 

Ii  is  |iro|iosed  at  tliis  siasj;e  of  the  ari;'nment  lo  ixaiiiiin'  (lie 
testimony  witii  regard  to  tliti  inferenees  w  hieli  it  is  siilimitted, 
siioiild  be  drawn  therefrom,  ly  tlie  eoiuinissioneis  in  the 
ealcnlatioiis  wliicii  it  is  assiiiiM'd  iliey  will  enter  Ujion  in  ihc 
eoiisideralion  of  tliis  liranch  of  tlie  ini|iiiiy. 

it  is  ronteiHled  bv  (ireal    l^ritain    that    in    b^«(l   tlie  '•  Marv 


Klleii"  is  th. 


u\i\\    vesse 


1    of   whieli    it    can    be  stated    with 


certainty  that  she  completed  her   \-oyaji'o  without   interfereiiee 
oi'  aiiv  kind. 


20      The  "  Vaialerhilt '■   was  also  sealiiiu' until  late  in  tl 


k;  season 


year,  but  it  is  i|ui 


ti'  clear  from  the  evidenee  ot  tlie  master 


that  _ 

in  her  ease  rhat  he  was  well  aware  of  the  seizures  which  weri; 
then  beiiiii' made.  He  now  says  that  that  eireuinstaiiee  did 
not  trouble  him  '.nucli,  as  he  exjioeted  tliat  if  seized  the 
( uni'i'iimenl  of  the  I'nited  States    would  fiillv   .eimbiirse   him 


tor  his  li 


Such  a 


■ilatemeiit  cannot   he  accepted   without  a 


;Teat  deal  of  iiualiiiealion.      In  miy  event  nudetails  of  his  ih 


ca 


tell  are  ii'.veii.  lau'  is  ll 


lere  all',   record  of  the  |ierf'ormaiice  of 


the    several    hunters    employed    upon    his    vessel.       There  is. 

:M  tbereloie,  no  means  of  detcrmininir  at  what   lime   he    rcaehcd 

ihc  sealinsj;  ii'roiiiuls,  or  duriny-   what    period    he   continued  to 


»l' 


■rate  there.      l''or  this    reason    the    evidence   lelatiiic-  to  th 


alili  of  ilie  ••  \'andcrl)ilt '"  does  not 


disci  'se  any  sniisfictory 


lata  upon  wliieh  a  ealciilatioii  can  be  based. 
The  record  ot'  the  "*  Sayward  "  is  also  incomplett'  as  has  1 


leeii 


howii  beloro. 


It  will  perliap-  be  ari;iiod  that  in  dealiiii;- with  the  voya>i'eid" 

the  ■■  .Mary  Kllen,  "  some  allowance  should  be  made  on  aeconnt 

of  the  statemeni  of  ihe  witness    I  >ra,i:',i;',  that    her  catch — '2'6'.^^> 

10  skins-wasan  e.veeiitionaliy  larueone.    It  may  have  so  appeared 

to  him,  but  a  eomparison  ol'ihe  result  id'  her  sealiiiL;'  trip  with 


that   ol    other  schoo 


Hiers  shows  that    the  result   of  tl 


le    voNiiye 


was  no 


t  as  I'ciiiarkalile  as  he  coiisiihu'ed  it  to  b 


for  iiir-tance,  (.'apt.  ."^liep 


ard,  cxaii 


lined  helore  a  larliameiit- 


aiv  ("oni.nitlee  on  .Merehant   Marine  and  I'isheries,  >ays  : — 

"(^).    What  is  usually  a  fair  catch  tor  a  ve.sse!  of  lln^  deserip 
ti(ai  ol  those  now  being  lilted  out?" 

7U 


li.  is;ii;. 


ivl 


i 


so 


MKTIIOl)    von    COMPUTIXrt    Till!    KSTrMATRl)    CATCH. 


"  A.   It  viirios  very  inuoli  iKfOi'diiig  to  Iht-  six.e  of  the  civw  ; 
about  from  1200,  to"2500  s^als.'' 

"Q.  Siiv  2000,  would  tliiit  lie  a  fuir  avorfigt-? 
"A.  I  would  Hay  1800." 

The  "Favourite"  in  188t>,  wllli  an  outfit  of  10  canoes, 
although  her  voyage  wat^  iuterruptt'dhy  the  eutter,  took  l':'.74 
seals  ln'tweou  the  7th  -luly  and  the  15th  August.  In  1887, 
the  "  I'athlinder"  with  a  crew  of  6  houts,  captured  2200 
hetwcen  the  2!^th  .Tune  and  the  17th  August,  and  would  doubt- 
less have  added  largely  to  the  inind)er  if  she  had  not  then  been  10 
frightened  from  the  ground  by  her  proximity  to  the  track  of 
the  cutters.  In  the  same  year  the  "  .Mar}'  Kllcn  "  took  laliO 
seals  between  the  18th  July  ami  the  IDtli  August.  The 
"  Favourite"  took  18:54  between  -July  10th  and  August  2tith. 
In  1888,  tin-  "  .Mountain  Chief,"  with  live  canoes  and  a  stern 
canoe  caught  I'OO  from  the  1st  of  August  to  the  3rd  or  7tli  of 
Seiitember.  So  in  1><M>,  the  "  N'iva  "  caught  2180  with  six 
boats,  between  tlic  titb  Jidy  and  tlu'  21-.t  August,  and  in  18!i0 
her  catch  was  201;')  between  7th  duly  and  12th  Soptendier  with 
six  boats.  The  •'Miiuiie'"  in  that  yt'ar  also  gut  UiOO  with  oq 
eight  canoes  and  one  boat  bi'twceii  the  nuddle  of  July  and  the 
2.-)th  Autiust. 


l!.|..  i:;si. 


In  that  part  of  the  argument  which  relates  to  the  duration 
of  the  sealing  season  in  Behring  Sea,  especial  reference  was 
ma<le  to  the  voyages  of  the  other  vessels  in  the  years  suiceeding 
1886.  For  the  reasons  there  stated  it  is  now  contende<l  that 
no  vessel  in  1887  furnishes  all  the  data  upon  wliich  a  calculation 
can  be  made  to  determine  the  average  catch  for  a  full  season. 
In  that  year  again  the  "  Vanderbilt"  remained  until  late  in  the 
season,  but  in  speaking  uf  the  voyage  the  master  i-  uind)le  30 
to  give  any  record  ot  his  daily  catch.  His  remarks  as  to  the 
influence  of  the  seizures  up(Ui  his  movements  are  applied  as 
well  to  I8>^7as  to  ISSti.  From  the  description  which  he  gives 
ot  his  diHerent  positions,  it  is  clear  that  he  was  in  the  locality 
over  whicii  the  cutters  were  cruising,  and  the  reasonable 
iid'ereiice  from  hi.i  statement  that  he  tried  "  lasw  ground  every 
day  "  is  that  he  did  so  to  avoi<l  seizure,  hence  his  small  catch. 

In  1888,  the  catches  of  the  "Favourite"  with  1-1  canoes 
and  the  '•  Triumph  "  carrying  1 1  canoes  and  a  stern  boat,  com- 
pare not  unfavourably  with  the  nundier  taki'ii  by  the  "  Nfary  40 
Kllcn  "  in  18^ti.  The  •>  Viva  "  maile  a  smaller  caltdi,  but  upon 
ccmiiaring  her  rcc(.)rd  during  this  year  with  that  i>\'  the  same 
vessi'l,  under  the  same  master,  in  the  two  next  siu'i'ceding  sea- 
sons, as  well  as  with  what  was  accompli>hed  by  other  vessels 
in  1X8M,  it  imiy  lai:i\  he  as^unled  that  there  were  I'ireumstancos 
comieeted  with  ("apt.  HaUers  voyage  not  nu'iitioned  in  the 
evideiu'c.  which  would  render  it  unlliir  to  desigmite  his  as  an 
avd'ayje  catch. 


It  is  beyond   iloubt    that   in  1SM>,   every    vessel    engaged  in 
scaling  was  interfered  with  either  directly  or  indirectly  by  the 


METHOD    Vi>\[    ((iMriTlNil     llllC    IlSTl.M,'.  i  Kli    i^'i'Cil. 


HI 


Kciziiiv^.  'I'licrc  is  no  direct  slatonn'iit  to  tiuit  rilVct  rciiaiiliug 
tlic  "  MiiiTirio  Mill',"'  Itiil  liii' tli(MH'as()iis  iiK'iiliciiicd  uiuler  a  jii'o- 
viouri  iicadiiii;-,  no  a~~umii',ii)ii  can  I'c  made  niKin  tliat  i;i\.iuid. 
Tlio  "  \'iva  "'  siH'Tiis  t<i  iiavc  ox|itM-ioiKcti  the  least  dilliciilty. 
Slio  tdok  2I1SO  skiiifi  ill  a  slmrt  pei'ioil  oi'  scaling,  and  tlial  fact 
t'lirnislios  aniitlicr.ii''iinncnt  in  i'avonr  of  liic  avrra^-,.  character 


)ftlie  "Marv  K 


k'n  8      ca 


teh  ,.r  1880. 


Tl 


le    evidence  's  imiih 


■In^^ive    tinit  IS'.IO 


wa-  a  s^'a.-^i/n  nt  viM'S' 


tiiiliivomalile    wi'allier.       It    is    obNious,    tl'cretbro.    tiiai    tin 


10  cati 


cli    ol'  aiis'    \- 'SM'l    in    thai    \-eai    cannot   he   taki'ii    as  a  fair 


critLM'ion   of  wiiat   the  same,  or  aiiv    oilier  scl 


io(nier  sinnlaiiv 


0([iiip|H>il,  would  aecoiniilisliin  a  year  in  which  all  the  physical 
conditioiiB  were   snch    as  to   facilitale  a  h 


ong   and   [M'osjieroiis 


voN'age  tor  evi'iy   ^tdiooricr  in  the  sea. 


It  is,  therefore,  siihiuitted    with  contidonce  that  the  >•  Mary 
y  well    he   taken  as  a  leiiivsentafivo  ship,  and  that 


UMi       ma 


K 

tlie    record   of  her    operations  in    I8SG  can  he   relied  n]i 


furnish 


ih 


Inrmslnnn'  a  lair  iiasis   ii|ion  wiiuli  to  estimate  the   nninber 
of  skins   which  could  ha\e    hecii    taken   hy  aiu'  schooner  well 
•JO  manned  ami  cijiiipped   in  any  ol  the  years  in  question. 


In  pursuance  of  this  pid[H)silion  the  toUowing  additional 
infei'eiices  from  the  evidence  relalint;'  \o  that  voyage  are  suh- 
niitted  tor  the  consideration  ol'ihe  Comniissioners. 

'I'he  "  Mary  KUeii "'   was  engaged  in  sealing  from  the  -Sth 
June  to  tlie  iiflli  AngnsI,  ISStJ.    h'ive  hunters  wei(i  employed. 
In  the  month   of  .\iignsl    these    Imnters  sealed  on  every  day  ^i-  '■•  i'   '•' 
except  the  5tli,  tJth,  IJtii,   loth,   Utii,  Kith,  I7th,  18th  and 
:>-2nd'. 

There  were  also  certain  other  days,  namely,  the  lltli.  lath,  1:.  p^  lv,  1. 
SO  :21st  and  24th  on  which  four  of  tlu'  hunters  were  onl  only  part 
ofthetlay,  hutinasmueh  as  the  hunter  .lacobsen  worked  all  day 
on  the  l.'ith,  and  half  a  day  on  the  1  Itli.  it  ap|.cars  that  these 
days  were  not  allogelher  unlit  for  hiinrmg.  The  stern  boat 
was  also  out  oi\  the  loth. 

The  number  of  scabs  taken  in  .\iignst  by  tin'  itnrividiial 
liuiiterri  is  giw'ii  in  the  o\idencc.  and  nia\  be  ^ummari/cd  as 
follows  : — 


l)e    l'"ries,   huntiiiu'    I 


)   whole  iiiiv^ 


iialf 


ilV^ 


look 


•220 


40 


.lacohsen.  1')  whole  days,  4  halt  days 17- 


•  liilian,       l(i 


\       d, 


|jorcn/.o.     la  do  [ 

Dillon,        U;  do  4 


2:'.  I 


!t..8 


In  ibat  nionili    the   steriidioat    took    17.  hnmiiig  on  lln'  1st, 
nd.    Itb.   (iiii.    Mb.    libb.    l-.tb.    I.Mb.    I'.Mh    and    2  1th.      This 


nil 


nd>er  is  iK)t    taken  into    account    in    the    calciilalion    u  hich 


imincdialely  toUow: 


11 


82 


METHOD    I'lill    iHiMI'riIN(;    TIIK    KSTIMATEU   CATCH. 


K-pi.  I'll: 


I!  |..  r3», 
111,.-  iri. 


Tlic  |iriK'tic';il  (li'(liicti(iii  to  he  made  iVnin  lliesi'  facts  may  bo 
stated  thus  ; — 

The  "Marv  Kllen "' liad  .'i  men  wild  were  in  tlie  sealiiin' 
watoi'rf  '24  <\u\s  ill  Auirii>i.  Tliis  wuuid  he  etiiiai  to  diie  man 
tor  120  dayji.  Hut  there  were  -llA  days  in  wliieli  no  Ininting 
was  (htiie.  Ii'aviiig  tii'^i  aetual  worivin^'  (hiys  i'or  one  man. 

Diirinn'  the.se  (IS^  days,  HoS  si'ais  were  tai<on  (not  iiieliid- 
iiii;-  tiie  47  taiveii  hy  the  stern  boat  in  Id  (hiys).  Thi.s  is  eciiial 
to  14  seals  pei  day  toi' the  one  man  [uiwer  at  wori';. 


If 


)\'   W  .'i''   (1 


f  ilhistration   tiiis   ealeiilation   he  apiilied  to  tho  Id 


oate  of  tiie  •'  Carolena,''  tiie  followiiit;-  result  is  obtained  ; — 

Tiie  "Carolena  '"  had  four  liuiiters.  it' these  four  men  had 
been  workiii";  in  sealing  watt'rs  duiiiiii  the  wiiole  of  August, 
weather  and  other  conditions  being  similar  to  tiiat  exiierienced 
by  the  "Mary  Hllen,"  the  total  would  he  e(|nal  to  one  man 
hunting  for  l-_'4  days,  (;'l  x  4       11.14). 

51A  days  represent  tlie  number  of  days  lost  hy  the  '•  Mary 


Kllen''  in  1-JO  dav; 


1  of  :)i.\ 


aV>). 


oi!  tlays  would  therefore  rejiresent  the  days  estimated  to  b 


lost  by  the  "  V 


irolena. 


Deduct  from  124  the  y:l  lost  days,  tiie  remainder  is  71,  whh'h 
mulliiilied  hy  14  gi\es  11^4  seals  as  the  take  of  the  "  Carolena  " 
in  August  on  the  basis  of  tlie  "  .Mary  KUen's  "'  cateh. 

It  may  be  argued  that  it  does  not  follow  because  the 
"Mary  Mllen  "' took  a  large  numljer  of  skins,  that  another 
vessel,  say  the   "  Carolena."  would  have  been    e(nially  fortn- 


20 


iro 


nate.  It  will  he  shown,  however,  elsewhere,  that  the  "  C; 
leiia  "  and  each  of  the  iither schooners  seized,  were  at  the  very 
moment  of  rheir  arrest,  among  the  seals  and  were  actually 
engaged  in  taking  them  in  large  numbers. 

In  this  eoimec'tior.    the   evidence   of  Caiitam    Clarence  Cox 
becomes  of  gii'at  innioitance, 

(I.  "  ^'on  well'  asked  hy  .Mr.   Warren   as  lo   whether  th 


:50 


was 


not  a   goo;l   deal   of  luck  in  this  matter  and  ])ailieularly 


•hether  there  was  not  u   goo' 


d  d 


eat   (leiii 


nded  on  the  way  the 


caiitaiii  handled  his  men,  and  you  said   there   was'.'     A.    Ves, 


sir. 


*l    ••  .Vssuming  that  you  have  a  captain  who  knows  how  to 
handle  liis  men.  there  is  not  much  chance  about    ii,   is  then'':' 
A.    1    consider    the    chances    are    wiiciji,  r    ilic    captain    stays  |o 
among  them  and  gets  them  or  not. 

(4-  "If  you    once   find   ^eals   liic    capraiii's   duty   is   to  get 


among 


rhem'r     A.  V^ 


t^   •■  If  you  do  that,  is  there  much  ciiauec  about  it '^     A.  No 
( liuiice  whatever. 

Q.  "  Why':      A.    It  you  >tay  ainong  ilu'iii  you  will  get  them. 


* 


* 


* 


ii.  "  Coining  down  i<i  this  point  ot  chance,  did  you  ever  go  on 
a  voyage  whi'ii  yi>u  did  noi  liml  tiiem '.'      A.    I   never  di<l. 

1^.  "(ji\en  that  y«m  once  tind    the  seals,  is  there  an_\  nnire  50 
chance  about  it  ilian  when  vou  lind   mackerel  wimn    von  are 


luuckerel  tiphiiu 


.\.  No,  sir.' 


Reference  may  also  be  made  to  the  evidence  id'  ('apt.  Haker. 
whi'fe  he  say  ,  .speaking  o|'  the  chanees  ol  lltiding  -^cals  : — 

-  Wikerevur   1    I'ound   tliem  in  .Inly  1  always  found  tiiein  in 
Am$!XwltJ' 


VAJ.uk  of  HIOAL  tSKINS. 


It  w'iis  sliDWii  lliiil  nearly  all  seal  skins  taken  liv  ipelaj^ic 
scalers  arc  sliijiiiLMl  to  komlon,  Kn^land,  ami  tlierc  soM  at  auc- 
tion ;  tlu!  sales  takini^  place  at  certain  tlxeil  |K'ri(iils  in  each 
yeai'.  At  these  sales  [mrchasers  from  ilifKcrent  parts  of  the 
world  attend.  The  value  of  seal  -^kins  -s  jiractically  settled 
iiy  the  prices  realized  thereat. 

Ju  this  eoinicction  r<!t'erence  is  made  to  a  letter  from  Mr. 
Bayard : — 

^  "  Nearly  all  undre-sed  fur  seal  skins  arc  sent  to  rjondon,  i;. 
where  they  are  dressed  and  dyed  fur  the  market,  and  where 
many  of  them  are  sold.  It  is  stated  that  at  least  111,000  i)00- 
plo  in  that  city  lind  prolitahle  em]iloyment  in  that  work,  far 
ii.;'>re  than  the  total  numhcr  nf  peojilc  engaged  in  hui'ting  the 
tur  seal  in  every  ]iart  of  the  world." 

And  al-ii  to  an  extract  from  the  ease  of  the  United  States 
before  the  Paris  tribunal  : — 

"Prior  to  1870  all  the  fur  seal  skin.s,  save  a  few  thousand,  r 
were  maiketed   and    sold    in    (^hina,    where  the  skins    were 

.10  plucked,  the  commercial  value  beiui;-  about  five  dollars  in  that 
country  and  something  less  in  iMimpc,  but,  the  supply  being 
so  irregular,  the  market  price  iluctuated,  so  that  a  cargo  of 
skins  was  sometimes  sold  as  low  as  tifty  cents  per  skin,  llnssia  y, 
also  received  a  [lortion  of  the  sup]ily  obtained  by  the  J^ussian-  f- 
American  Company.  A  tew  skins,  howevt'r,  were  purchased 
in  England  by  J.  M.  <)[i[icidieim  and  (.'(Unpany,  and  in  the 
fifties,  New  York  also  received  a  supply  from  the  Russian- 
American  Compimy,  i)ut  it  was  not  until  the  lease  of  thi'  I'riby- 
loif  Island  to  the    .Maska   Commerciiil  Company  in    1870,  and 

;>,)  throngh  the  united  efforts  of  that  company  with  C.  M.  Lamp- 
son  and  Comiiany  that  the  seal  skin  industry  received  the 
impetus  which  has  built  it  up  to  its  present  ''ondition.  At 
the  same  time,  the  methods  of  dyeing  and  dressing  the  skins 
were  perfected  through  the  same  agency,  and  seal  skins  made 
an  article  of  fashion  in  general  use  in  F.urope  and  .\inerica, 
and  Ix'came  much  more  \akud)le  as  merchandise." 

••  In  the  present,  as  a  result  of  these  cndcax'ouis  an<l  the  in- 
crcaseil  prices,  London  has  become  [iractically  the  sole  marki't 
in  which  the  skins  of  the  fur  .seal  arc  sold,  and  buyers  gather 

.jO  thei-e  semi-amuially  fnun  iliffcrcnt  countries  to  purchase  the 
skins,  which,  to  the  luunber  of  one  lunidri'd  and  lifly  thousand 
i)v  niipic.  are  soM  at  piililicauction  " 

Theodore  jjubbc.  a  witness  callc(l  mi  lielialf  of  the  United 
Slates  and  a  man  of  experience  in  t'.ie  Inr  business  in  Victoria, 
says  : — 

(I.  ■' Is  it  not  your  experience  .\lr.  jjultbe  *lial  the  London  u, 
priccb  of'  tlicse  skins  gove''n  flic  transactions  from  lime  to 'in 
time?     A.   Decidedly." 

(J.  "l>o  voii  mean,  .\lr.  I.,ubbe,  that  the  London  piicc  is  the 
g'  \cruing  pric<' ?     A.   Yes,  sir.  ' 

>>.   "  \i)U   mean   (he   prices  in    l,i>ndoii   govern  the   uiarkel 
;,(>  value  in  N'ictoria?    A.  ^■es,  sir.'" 

83 


l>7ii. 


IS?!). 


r.s. 


|s!i: 

■  s. 


84 


VAUIK    01'    SKA  I.    SKINS. 


K  ISO:;. 
ls7n. 

li.  1S71. 


li.  issi, 


Tlii'iT  \V(MV  several  tiritis  I'ligiiuiil  in  Injiiig  skins  iit  Vio 
torlii,  and  prior  to  1SS7  most  of  tlir  |ii'lajic  scalovs  soM  tln'ir 
skina  to  those  buyers,  luit  in  ISST  tlie  owiiri's  oi' sealiny- vessels 
began  to  sliiji  their  skins  direit  to  Lomlon.  ami  this  |iraetiec 
beeanie  nior(^  eoniinon  eaeii  yeai' 

It  is  sulmiiltoil  thai  in  arriving:  at  \\i"  priei'  ol'  skins  the 
C'onunissionerr-  shoiihl  adopt  tlu'  nel  price  whiili  rould  jiave 
hcon  obtained  by  shipiiiui;'  to  London.  It  is  rjear  that  the 
sealers  liad  a  riyht  to  shiji  their  s^-oods  to  the  most  jirolitable 
market,  and  when  it  is  shown  that  they  were  in  the  hal>itot'10 
doing  so,  it  is  not  an  nni't'asonablc  jiresiimption  that  tliey 
'  would  have  sliipjied  the  steals  eanght,  and  (o  be  caught,  in  the 
years  in  ijuestion  to  that  markcM. 
i>i;i.  For  instance,  Nfnnsie  shipjied  skins  lo  London  in  1888,  '[S^'^ 
and  18i"0. 

Warren  shipped  to  I'^nglaml  in  1887. 

Hal!  and  (ioepel  shi]iiieil  to  I'aisi'land  in  188^  and  Richard 
Hall  swore  they  intended  lo  do  so  in   1881). 

LnI)bo  says  : — 

"  Q.  In  the  year  1888,  who,  besides  yourself  was  purchasing  20 
skins  in  N'ictoria  ?     A.  That  is  pretty  hard  to  find  out.  1  think 
then'  were  very  lew  skins  sold  here  that  year.     They  were  all 
shipped  by  the  owners.     *        *        *     With  regard  to  1889, 
there  were  very  few  bought  hero  that  year." 


Prooeoding  to  consider  the  evidence  with  reuard  to  the  iiriee 
obtained  for  each  of  the  years  in  (pie.stion,  it  is  claimed  that  in 
1880  skins  were  worth  'S7  eaidi. 
I!  111.  Munsie  states  that  in  the  tall  of  188(;  he  sold  the  catch  of 

the  "  I'athtinder"    to  .losejih   Boseowit/,  ,onc  of  tlie  Victoria 
l)uyers,  for  §7  a  skin,  and   that  there  was   no    reason  wliy  he  80 
should   not  have  sold  tlu^  eateh  of  the  "('aroleiui"'  at  the  same 
price.     ITe  was  not  cross-examined  on  this  (pic-tion. 

Lubbe,  in  his  direct  examination,  was  aski^d  as  follows  : — 

'•  (1.  Will  yon  tell  us  how  many  skins  you  purchased  at 
A'ictoria  in  tlie  year  188(1,  and  what  was  tlie  avei'age  priee 
paid?     A.   I(1.7'.i7  seal  -kins  in  salt,  average  price,  84. 81)^." 

On  eros.s-examination  he  was  asked  as  follows  : — 

"(J.  In  1880  you  have  given  us  that  you  purchased  ltj,7!)7 
skins?     A.  Yes. 

"Q.  r.nt  of  that  only  2;5'.»  were  BehringSea  skins?  A.  Yes."  10 

"  Q.  What  did  you  jiayterthose  IJehring  Sea.skins?  A.  87.50. 

.\nd  again  : — 

li.  rv.id.  "  (j.   Wiiat  piii-e  were  Hcssingei'  and   Company,   (who  were 

large  buyei's  ai  Victoria)  [laying  that  vear  (18^0)?  A.  From 
SO.'aO  to"§7.'" 

"  Q.  The  coast  cateh  comprises  a  vvvy  large  jiercentage  of 
grey  pups,  does  it  not  ?     \.   Yes,  sir." 

"  Q.  ("an  you  tell  ine  out  of  that  lot  of  10,7!i7  .skins,  how 
many  grey  I'Ups  there  were?     A.  :J!t7"J  " 

it  was  shown  that  the  grey  pup  skins  were  worth  very  much  50 
le.-^s  than  full  si/.ed  skins,  about  SI, 50  each. 


I!,  issj. 


line  .JU. 


If.  IS'.lll. 
Illl.     IK. 


VALUE   OF   SEAL  SKINS. 


86 


For  1^87  the  sum  cliiimod  is  .?0.50. 

Muiisic  says  that  in   1887  hn  sold   2820  sl<ins  to  Josoiih  " 
ITlIniaii,  of  Xew  York,  and  realized  !?<!  a  skin.     Part  ot  tliosc 
wore  of  tlio  spring  catch,  ami  conscMnieutly  loss  valiialjle  than 
tho  Hohring  Soa  skins. 

Jacdhsion,  speaking  of  1887  : — 

Q.  "  Wliat  did  yoii  do  with  your  Uohriny-  Sea  catch  ?  'v 

A.  "  I  sold  tliom  to  Mr.  Davis  or  to  Moss,  I  don't  renieni- 

her  wliicli. 
10      Q.  "  What  did  you  realize  for  them  ? 

A.  "  Tliat  1  'annot  say,  hut  it  was  somewhere  hctwcon  $6 

and  $7  for  tlio  Behring  Sea  seals. 

Charles  Spring  : — 

Q.  "  What  was  the  price  of  skins  in  1887  tliat  you  received  ?  u. 
A.  'SS7. 

Q.  "  Was  that  the  market  price  or  what  you  got  ? 
A.  "  Tho  hest  price  that  I  got. 
Q.  "  You  got  them  from  wliat  sliiji  ? 
A.  "The  "Favourite." 
20      Q.  "Then  you  sold  to  whom? 
A.  "  Morris  Moss. 

Q.  "  Wiiat  did  you  realize  for  tlie  Behring  Sea  catch  ? 
A.  "$7. 

Q.  "  Did  you  sell  any  for  a  less  price  than  §7  ? 
A.  "  Yes,  sir. 
Q.  "  For  what  price  ? 

A.  "  ^5.  (But  he  explains  that  that  was  much  later  in  the 
season). 

Warren  says  that  in  1887  : — 

30      "We  shipped  the  skins  to   England,  hetwecn    2200   and  li. 
2300,  and  they  netted  after  payment  of  all  expenses,  §0.30." 

lie  explains  that  in  presenting  the  claims  of  himself  and 
other  parties  for  compensati(>n  for  the  eases  arising  in  1887, 
he  put  the  i)riee  of  the  skins  at  85.50,  hut  at  that  time 
he  had  no  returns  from  his  shipments,  and  thcretbre,  inserted 
in  tho  claims,  tho  amount  that  some  of  tho  Iju^'ors  were  olferiiig 
at  Victoria,  viz.: — >!5.50. 

It  may  l)e  noted  that  George  IJyrnos  in  the  case  of  the 
"Triumph",  1887,  claimed  $8  per  skin. 


ii;(. 


iM'  l:<. 


S7I. 


1S7I. 


'■  .  m 


m 


40      For   the  year  1888,  the   price  claimed  is  $12.25  per  skin.  |.  ishk. 
Munsie    sold    tho    catch    of    the   "  Pathlinder,"    and    netted 
.S12.25  in  London  ;   see  also  his  declaration  in  support  of  his 
claim  for  1889,  where  the  account  sales  for  1888  are  inserted 
in  full. 

In  1889  it  was  shown  that  the  skins  wore  worth  .?11.00f  ;  I!,  isnn, 
see  evidence  of  Munsio  whore  ho  says: — "sold  2326    skins 
ex-schoonor  "Viva",  not  received,  §11.00|. 

In    1890    the  same  witness  says,    that  skins    wore  worth  i-.  isc.,, 
between  §15  and  816.  •'""!• 


50      In  1892,  skins  were  worth  $14. 


liiM't. 


SI'KCrAf,  (T)X|)ITI(>NS    AK1"K(TIX(}   VAI.I'K  (»F 
TIIK  \i;s.sKLS. 


i;.  |..  17'-.. 

lilM     Cll. 


[ii  iirriviiiLC  iit  tlic  sums   tu   Kr  iillowcil    iniilcr  llic   lii'iul   nf 
\('sscl-<  s<'i/.('(l,  ilic  iilt.Milinii  (if  tlic  ( 'oiMinissiiiiicrs 
(Ills  siiinMiiidiiiu'  Ilic  liiiildliiu' 


lie 


the 


IC    SpCClill     Cd 


lulili 


Vl.l 

is  diivclcd  t(i  ll 

and  iiri|uisiii(iii  dt'tlu'  sldps  in  (jiu'stidii. 

1 1  is  iidinitlcd  timi  in  I  lie  y-<' ^  IHSd  and  l>;s7,  a  snddon  and 
viM'v  cxtciidi'd  intci'tst  in  tiic^  scalinij;  industry  was  a\va!<('ni'd, 
and  many  iici'soiis  woro  I'ound  anxicui-i  to  (jiii,''a<i;o  in  tiuit  ocru- 
jmtidn   wlio  Inid   jiri'vidnsly  l>aid   little  iw  no  atlcnlidii  to  it.  10 


Tins  state   dl'aiiiiirs   was  caused  liv    tlie  I'eiidi'ts  dt'  tia 


which  had  atlende(l  the  vovaiii'^  ot' certain    vc: 


sutross 
in    lU'lirinu 


Sea  in  the  years  immediately  iirt'cediuff 
who  were  I  litis  desii'ous  dl' enira!. 


I.SSO 


Hit  tl 


le  iiersdiis 


lUi;'  in  the  sealinn'  occii|iation. 
were  hroiiicht  taeo  to  face,  at  that  time,  with  a  inactical  dilli- 
ciilty  ot'ijreat  iiii|idrtaiu'e  to  them,  viz.,  tliat  no  vessels  snitahlo 


for  tlie  pur 


juiriKise  were  Idr 


h-  in  British  t'oiiiml) 


Tl 


le  result 


was  that   everyone   wh.i    was   then  in  possession  of  a   soalint;- 
seliooner  f'oiiiul  that  his  iirdpeity  was  in  demand.    For  instance. 


wlien  til 


Wll 


s  lii'dUirht    over 


roiii 


upaii,  her  owners  OQ 


were  almost  immediately  ainu'dachcd  hy  a  w.uild-lie  jiurchaser. 


wlio  dli'ered  89,0011  for  her,  hut  .\lr.  ( 


so  with  every   o 
These  persons  h;i 


iray  rt't'iised  to  sell  ;  and 
hodiier  at   Viet 


ona. 


tlier  owner  of  a  sealing' 

etermineil  to  empldy  llieir  vcs-t'ls  in  seal- 


in>. 


iiid  tlu'V  were  cdiisetiuently  not  in  the  market.    Tiu'  ship 


re(|niro(l  enuii 


d   have   heeii  huilt  at    V'ictor^a ;    ii 


lint  of  fact 


nianv   ot   tlu'   vcsssels  soi/.e( 


d   eith 


iieeii    (n'iirinall\'   c(Ui- 


stnu'ted  or  reluiilt  at  that   port,  hut    there   were  many   special 
conditions  aflectiiiii"  the  imildiiiL;'  ot'  vessels  there,  which  largely 
iiiereased  their  cost  over  what  if  might  have  heeii  had  the  same  g(j 
class  of  sliips  lieeii   const  riicted  in   a    phee  where  other  eoiidi- 
tioiis  prevailed. 

The  witnesses  called  on  liehall dl'  (Ireat  iiritaiu  make  this 
very  plain.  They  all  agree  that  lalionr  was  scarce  and  dear, 
$4  and  -So  a  day  being  the  ordinary  rate  ot'  wages  lor  a  ship- 
wright. The  witness.  Walker,  who  had  an  extended  expe- 
rience in  that  hii-iiicss,  says  that  in  l.SHl'i,  in  N'ictoria,  in  conse- 
quence of  the  scarcity  ol  \v(U'k.  .-Iiijtw  rights  had  ja'ai'tically  to 
111' imported  tor  every  joli  ami  left  when  the  particular  piece 
of  Work  oil  which  they  were  engaged  for  the  time  being  was  ^q 
linished. 

This  fact  resulted  in  a  particular  increase  of  expense  wliioh 
is  worthy  dt'note.  The  witness  says  that  in  large  places  whore 
u  quantity  ol' shi[iliuilding  is  in  ]irogress,  ordinary  <'ar[ienters, 
whose  o.agesare  much  K'ss  per  day  than  that  t)f  shipwrights, 
may  be  employed  to  perform  miudi  ol' thii  work  u|ion  a  vessel 
111  (ler  construction.  In  \'ictoria,  however,  at  the  time  in  ijiies- 
lioii,  when  a  builder   (  iupld\ed   a   .shipwright,  he    was  (ilili^'t'd 

'    8tJ  ' 


SHKCIAIi    CONDITIONS    Al'FKCTIMI    VAI.Ul:    OF   TIIK    VEKSKI.S. 


87 


tn    l<('o|i    liiiM    at    woik   ('(iiil'miiall)    ni'  lose  liis  sfi'S'iccs  iilld- 

f^'ctliiT.     Till iis('([iifiict'   wuH  tlial  thesi'   sUillcd    lalntiircrs 

lpert()rim.'cl  not  only  wluit  in'ita'mi'il  jiaitiiMihirlv  to  flioir  trade, 

l)iit  also  (lid  all  tlio  work  upon  tliu  sliip,  in  ovci'v  iiistume  the  |{  |,.  1711, 

tiecdiiiil  liir  \\air<'s  Ix'int;-  iiicii'asrd  aiTorduinly. 

Anniii,  liiiiilii^r  was  verv  I'Xiicii.sive,  contiii!i'  as  uiiicli  iik  $\-l  1.'.  !■■  iT". 

'  .  Iin>-  .VJ. 

jier  thousand  as  coiniiarcd  w  itii  !?*<,  the   in'irc   at    the   |ivest'iit 
dav. 


Ail  tastt'iii 


nil's   were  1 


in|i(irtc(l    iVdin    llie  I'nilcd    States  and 


lo  paid  a  iiiirh  rate  oC  duty.  It  is  true  that  ihcsc  articU'S  wen  lor 
Hiilo  in  otlier  parts  olCaiiada,  l)Ut  inthoi^e  days  (■oniiniinication 
het\V(!OM  British  ('ohiiuMa  and  Mastcrn  ('an;ida  was  rare  and 
difKcnlt  This  inarl^i't  was  littk'  known  and  in  pracliie  iu)t 
resorted  to.  Siiip  ehandleis  kojit  no  ('anadian  goods  in  stock, 
and  the  result  was  that  al»>nl  :!0  per  cent  of  the  cost  of  a  ship  l; 
was  madi'  np  of  art  ides  ]iayini;'  a  duty  ranuinj;'  tVoiii  ITA  to  2o 
per  cent. 


!■■  IT 


Au'ain,  t'niin  tin 


act  tiiiit  onl\  a  IV'W  vessels  were 


huilt 


at  sneli  int"re(|Uciil   intervals,   tnucli  I'xpense  was  incurred    in 
matters  f)t' detail  which  would  not  happen  at  all  ninler  ordinary 


circumstances. 


'  re.> 


h  modi 


d  t 


s   were  prepareil    tor   e\ery  ship,  1;.  |.. 


an 
an 


1)V  til 


inie  was  lost  and  expense  ei 


tailed 


in  prcpariiij 


mod 


CIS 


d  moulds,  and  in  waiting  tor  their  inspection  and  ai>pro\al 


V  prospective  purchaser. 


When  all  this  was(h)ne,  siiitahh 


30 


pla>'es  lor  wcu'king  out  details  had  in  each  lase  to  he  specially 
arranged  tor,  and  generally  all  the  preliminary  stt'ps  in  con- 
nection with  the  I'oiistruc'ion  were  taki'ii  under  eircuinstances 
of  eonsideralile  inconvenience,  and  with  much  more  than 
ordinary  dillieulty  an<l  expense. 

There  is  an  ahundance  of  comiiet 


jieteni    ami    rclialile   eviuence  1;.  |..  iv.,  1. 


introduceil  011  heliall  nl' (!reat    liritai 


n.  wliicli   e 


-taMis 


•lnsi\{^l\-  1  hat  under  the  circumstaiux's  ahove  rel'errcc 


It 


lies  con- 
(>,  vessels 


of  the  class  used  lor  sealing  could  not    have  linn  huilt   at    \' 
loria  for  less  than  about  si. TiO  a  ton. 


i^:i 


iii:a 

InlH 

in:!; 


i 


I 


Tlii'relore,     ('apt.    Sieward.    .Mun-ic,  and   otlicr>  who  \\ere  1;.  |..  mi. 


desirous   ol    ac(|uirim;'    vc^sel 


le'raii  to    cast 


bout    lor    a 


diU'ereiit  market  in  which  their  jiurchas 


)iild   he  imuK'   and 


IllM       l<l 


tl 


4U 


icy   iiiiiui 
from    the   lisl 


1    that     their     hcst     iila 


plan   was   to    buy   their  vessel 


iiuu'  llci 


■t  in  Nova    Scotia.      It    must 


oe   assumed 


that  in  so  doing  they  used  the  priidciire  and  business  skill  of 
men  of  ordinary  capacity.  They  wcrt'  perfectly  conversant 
th  the  state  of  things  iipiui  I'liget  Sound  and  at  San  l"'ran- 


wi 


l.VI. 


CISCO,    U) 


r  the  evidence  i>  that    thev  made 


HUiries  at 


lioil 


those  points. 

It  iscert'.iin  that  by  the  course  adopted  they  aci|uircd  their 
vessels  at  a  price  li'ss  than  their  actual  cost  would  haxc  been 
if  huilt  at  Victoria. 

Munsie  says  it  paid  him  to  bring  vessels  ur(Uiud  in  lhis\va\-.  1;.  ,,  an 


50      Sicward,  in  his  examination,  states  that  it    would    have   cost 
more  to  hiiilil  them  in  Victoria  at  that  date. 


1;.  |..  I.- 

llll.'  In. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


// 


;^  .5.% 


^*'.  4^ 


'^ 


1.0 


I.I 


11.25 


lit 

lU 

u 


1*0 


■uut. 

14  U4 


^Sciences 
Corporation 


33  WIST  MAIN  STRUT 

WItSTIR.N.Y.  145M 

(716)  173.4303 


I 


1 


;\ 


I 


88 


i;.  |..  1(17. 

IIIM'    II 


SPEOIAL   CONDITIONS    AFKECTINO    VALUH   OK    TIIK    VESSELS. 


Turpol,  u  shipbuilder  of  exporicuo,  ..ny\u.  ..n  his  trade  at 
V  ctona,  stated  that  tho  cost  (,f  procuring  vesHoIs  in  the  way 
reterred  to,  was  h,9s  by  the  vahic  of  the  outfit  at  Last,  say 

Tho  fact  therefore,  that  men  conversant  with  tho  shii.,,inir 
business  and  having  tho  means  to  pay  cash  for  what  they  wante.l 
njter  nuimry  and  consi.Ieration,  decided  to  buy  vessels  in' 
A  ova  bcotia  and  to  bring  them  aioun.l  the  Horn  to  Vi..toria  at 
a  very  large  cost  and  considerable  risk,  is,  it  is  submitted,  con- 
elusiv.  evKlonce  that  vessels  suitable  for  sealing  purposes  uuld  ,o 
only  be  obtained  at  Victoria  at  pric-es  which  at  lirs  sigh,  n.av 
appear  to  be  high.  ^         " 


CONCrSE  STATEMENT    OF    FACTS    RELATING   TO 
EACH    CLAIM. 

Under  this  heading  it  is  proposed  to  summarize  the  evidence 
relating  to,  and  to  tabulate  the  ditterent  items  of  claim  proved 
in  each  case. 

IHHU. 


TUB   " GAROLENA. 


Claim  No.  1. 


The  "  Carolena  "  was  a  registered  British  schooner  of  32  tons. 

The  schooner  was  originally  built  at  Port   Franklin,  in  the 

10  United    States,   and    was   registered  as  a  British  vessel  in  the 

year  1870,  but  although  at  the  time  of  seizure  she  was  an  old 

vessel,  as  a  fact,  she  was  practically  rebuilt  in  1884  and  was  as 

good  as  new. 

This  is  shown  by  the  evidence  of  Robinson,  who  states  that  r.  p.  ivj. 
"in  1884  he  lenghthened  tlie  vessel  eight  feet,  and  increased 
her  '  readth  amidship  about  twelve  inches,  and  that  at  that 
time  they  gave  her  new  rigging  and  a  new  outfit ;  and  also 
a  new  set  of  spars." 

lie  says  further:  "that   when    this   work  was   done,   the 
20  'Carolena'  was  in  pretty  good  condition  ;  that  she  was  a  nice 
handy  little  vessel,"  and  proceeds : — 

Q.  "  Was  she  worth  more  than  a  vessel  of  the  same  length  n.  \,.  m\. 
a  new  ves-sel  ? 

A.  "  No,  worth  as  much,  anyhow.  All  parts  that  I  know  of 
her  were  sound." 

Q.  "How  old  was  she? 

A.  "  I  don't  know." 

Q.  "  If  she  was  twenty-five  years  old  when  you  lengthened 
her  would  that  make  any  difference  in  her  value. 
30      A.  "  Not  if  she  was  sound." 

Q.  "  When  you  did  the  work  on  her  did  you  also  put  on  a  a.  \:>7. 
new  deck? 

A.  "  Pretty  near  a  now  deck." 

Sabiston,  in  speaking  of  the  alterations  made  to  the  n.  p.  .mki. 
"Caroleim"  in  1884,  says,  about  t\.-o-thirds  of  the  hull  had 
been  renewed  in  the  lengthening  of  the  boat.  The  deck  was 
also  renewed  in  the  same  manner.  She  had  to  have  new  rig- 
ging, sails  and  spars,  because  the  vessel  was  much  larger  tban 
she  had  been.     She  was  in  very  good  condition. 

40  Q.  "Well,  would  you  compare  her  as  an  obi  ship  or  as  a 
new  ship? 

A.  "  She  was  compared  with  a  new  vessel ;  she  was  nearly 
all  new." 

(J.  "  And  you  think  that  two-thirds  of  her  hull  was 
renewed? 

A.  "  Yes,  sir,  fully  two-thirds. 

Q.  "There  was  two-thirds  of  the  deck  renewed? 


BS— 12 


89 


;P 


90 


TUB   CAIIULENA. 


K.  -Jill. 
Ilii«  40. 


U.  I71K, 

IilH>  Ik). 


I!.  17111. 
liiii  Xi. 


A.  "Yc8,  dr. 

Q.  "  Any  new  ribs  in? 

A.  "The  whole  new  part. 

Antl  he  tiirtlier  sayn  :  — "  Nearly  two-thirds  of  the  sheathing 
waa  renewed,  the  deck  house,  and  she  hud  now  spars." 

So  also  the  evidence  of  Turner,  a  witness  called  by  the 
United  States,  is  as  follows  : — 

Q.  "  And  as  a  matter  of  fact,  if  you  had  lenethoned  the 
vessel,  and  had  put  new  frames  in  her,  you  would  practically 
be  making  a  new  vessel,  would  you  not '!  10 

A.  "  "\  es,  sir. 

Q.  "  And  would  not  the  olije''tion  then  he  overcome? 

A.  "That  objection  at  all  events. 

Q.  "  That  would  sultstantiallv  be  a  new  vessel,  would  sho 
not? 

A.  "  It  seems  to  nie  she  would  bo  a  new  vessel. 

And  further  on,  after  expressing  the  opinion  that  ho 
rather  objects  to  the  lengthening,'  of  the  vessel,  the  following 
question  and  answer  appear  : — 

(i.  "  And  the  person  who  had  seen  the  work  done  and  who 
had  actually  done  it  in  that  particular  instance  would  bo  a  20 
better  judge  than  you  would  i>e  ? 

A.  "  Yes,  sir,  decidedly,  if  be  was  competent." 


|{.  He 


liii.-S. 


l.V.i. 


liij. 


iiir  ;ta. 


On  the  (luestion  of  the  value  of  the  "Carolena,"  therefore, 
it  may  be  assumed  that  in  1886  she  was  practically  a  new 
vessel.  The  evidence  of  the  witnesses  as  to  her  value,  esta- 
blishes that  she  was  in  that  year,  worth  at  least  94,000. 

Munsie,  says,  that  84,000  was  the  fair  value  of  the  vessel, 
that  ho  paid  for  her  in  1885,  .*:{,800,  and  put  repairs  on  her 
after  he  bought  her;  that  after  she  made  her  spring  trip 
in  I88o,  the  Dominion  Government  chartered  her  for  Dr.  30 
Dawson,  to  make  a  surveying  tri|>  on  the  coast  of  Vancouver 
Island,  and  Dr.  Dawson  spoke  of  buying  the  vessel  for  conti- 
nuing that  service. 

lie  further  says,  the  "Carolena"  was  in  good  condition 
when  she  left  in  188f!,  and  that  in  that  year  there  was  a 
demand  for  vessels  of  her  description,  as  the  sealing  interest 
was  beginning  to  increase. 

RouiNsox  says  that  in  1884  or  1885,  in  his  opinion,  she 
was  worth  >?5,000. 

Sieward  states : —  "  I  am  not  acquainted  with  the 
"  '  Carolena.'  "  40 

(i.  "  But  from  your  knowledge  of  vessels,  take  a  vessel  in 
1887,  suitable  for  scaling,  and  of  the  tonnage  of  thirty-two 
tons  or  thereabouts,  would  you  consider  |4,000  a  high  or  low 
valuation  ? 

A.  "  I  should  consider  that  a  very  reasonable  valuation, 
considering  the  experience  I  had  afterwards  in  buying  vossele. 
I  will  say  that  in  1H!»1,  I  paid  1^3,200  for  a  vessel  about  thirty 
years  ol»l." 

William  Turpel  says :  "  I  know  a  little  about  the  '  Carolena,' 
if  she  was  as  gocjd  as  they  say,  I  should  think  sho  would  be  50 
worth  about  «4,000." 


TUB   CAROLKNA. 


91 


Walker  says  that  after  tlie  "C'aroleiiu"  was  longtliciied,  u.  177, 
ho  moaaurcd  her  for  rej^iMtratioii  and  made  a  tlidrougli  ex- 
amination ;  she  had  been  ropnired  and  simu'  altcratioiiH 
made.  "  I  thinic  she  wan  made  lurijcr  ;  I  am  pretty  sure 
there  was  something  in  tliat  line  ;  when  I  hi>i;;aM  to  meamirc 
lier,  she  was  fitted  up  very  nicely.  I  think  she  wiis  then  in  the 
hands  of  the  pilots  liere,  anil  was  extra  well  fitted  up  at  that 
time,  llcr  eabin  was  very  nice.  She  was  fitted  up  specially 
oil  account  of  the  pilots  who  used  lier  as  a  jtilot  boai.  ft 
10  was  just  after  she  was  fixed  up  that  I  measured  lier.  I  could 
not  say  much  about  her  lines.  She  looked  very  well  above 
the  wator  line.  She  had  a  very  good  deck,  there  was  good 
work  done  on  her  the  time  she  was  repaired." 

Q.  "From  your  knowledge  of  the 'Carolena'  iiiid  your  know-  u.  ith. 
ledge  and  experience  of  sjiips  and  the  construction  of  them, 
what  would  be  a  fair  value  for  that  vessel  when  you  saw  her? 

A.  "  1  should  say  «4,000. 

Q.  "Could  you  have  built  a  vessel  like  the  'Carolena' 
at  that  time  for  that  amount  ? 

A.  "  Not  with  everything  on  board  of  her  :   anchors  and 
20  chains,  and  everything  of  that  kind." 

Alexander  Watson  : 

Q.  "  Had  you  any  kind  or  form  of  opinion  as  to  her  vahte  ?      it-  "<«. 

A.  "  Well,  I  could  see  what  the  vessel  was  like,  but  don't '""  '" 
know  as  I  formed  any  oj>inion  as  to  her  value  at  that  time. 

Q.  "  But  from  the  knowledge  that  you  then  acquired  of  the 
vessel  what  would  you  estimate  her  value  to  be  then  ?  A. — 
Of  course,  the  value  varies,  but  I  can  give  a  general  valuation  ;  it 
would  be  aV)0Ut  $4,000,  or  perhaps  a  little  lower,  but  somewliere 
about  that,  I  mean  her  market  value." 

30     Orlando  Warner  states  that  the  ves.sel  would  be  worth  in  n.  mn, 
his  estimation  $3,800,  or  $4,000,  just  about  there.  ''"" '" 

John  Sabiston  says,  opeaking  of  the  "Carolena"  alter  she  u  jki. 
was  lengthened,  it  would  have  cost  $o,000  to  build  her  aa  she 
then  was. 

J.  D.  Warren,  a  num  of  great  experience  in  sealing  matters,  it.  •j.it. 
says  he  knew  her  when  she  was  in  possession  of  the  pilots,  had 
seen  her  frecpiently,  and   is  able  to  speak  of  hor  ritrging  and 
build.     She  was  a  very   good  vessel,  small  size  ;  oi\e  of  those 
sharp  built  seagoing  models.     She  was  considered  a  very  good 

40  sailer. 

He  further  says  that  the  pilots  spent  a  great  deal  of  money 
on  her  in  1884  ;  they  put  her  on  the  slip  where  they  cut  her  in 
two,  hauled  the  two  ends  apart,  and  built  a  section  in  between. 
He  knew  the  "Carolena"  in  188(},  was  aboard  of  her  in 
that  year  and  would  conaider  her  as  she  then  stood  ready  for 
sea,  worth  $4,000,  and  that  would  he  a  fair  value. 

Charles  Spring  says  he  knew  her  and  considered  lier  worth  li.  jii, 
13,800  or  $4,000.  In  1880  her  hull  was  valued  for  insurance  '""  '" 
purposes  at  $4,000. 


P' 


V  '■■■. 


Rfl      The  "  Carolena  "  at  the  time  of  the  seizure  was  owned  by  |{.  !i7. 

•'"  liiif  IL'. 

William  Munsie. 


■  -  la 


92 


TUB  CAROLBNA. 


.iiii'  10. 


H.  :wo. 


K.  .W, 
lini'  ;I4. 


K.  ;ti!i. 
lih.'  II. 


K.  '-'iw, 
lilli'  to. 
K.  L'liH. 


I!.  :.'ii7, 
line  12. 


U.  •jr.'.i, 

iilii'  41). 


Witli  rogani  to  liur  c(|uipiiieiit  lor  cntchiiig  suuIa,  attuiitioii 
is  cullod  to  till-  tiut  that  tlio  Imntori*  on  bounl  tho  "Caroleim" 
wore  picked  ini'ii,  probably  amongst  the  best  iuiiitcrs  engaged 
in  the  business. 

C'otsford  states  that  ho  himself  was  a  particularly  good  shot ; 
that  Xed  ShioMs,  another  hunter,  was  a  very  good  shot  ;  Jos. 
Dupont,  anotlier  hunter,  was  a  very  good  shot ;  and  tlnit 
McConuhey,  the  fourth  hunter,  w.tsalso  a  good  shot,  but  not  so 
well  accustomed  to  the  canoe  as  the  others. 

Several  other  witnesses  speak  ot'the  hunters  on  the  Carolena  10 
as  exjiert  Imnters. 

It  was  suggested  that  the  "  Carolena"  being  maimed  with 
white  hunters  using  canoes,  her  equipment  was  not  so  good  as 
if  she  had  had  boats  manned  with  whites,  or  canoes  manned 
with  Indians.  Several  witnesses  were  examined  on  this  point 
and  it  was  shown  that  as  a  rule  white  men  do  not  handle 
canoes  as  successfully  as  Indians  because  of  want  of  training. 
The  evidence  is  that  in  the  case  of  the  "  Carolena  "  the  hunters 
were  experts  in  the  management  of  canoes,  and  were  equal  to 
any  Indian  in  that  respect,  and  further  that  if  white  men  were  20 
accustomed  to  them,  canoes  so  manned  were  in  some  respects 
better  than  boats. 

Cotsford  says  : — 

"  So  far  as  the  canoe  was  concerned,  that  did  not  trouble 
"  me  at  all.  I  was  just  as  much  at  home  in  a  canoe  as  any- 
"  where  else  I  have  been  accustomed  to  most  all  kinds  of 
"  small  craft  ;  racing  craft,  light  going  boats  and  canoes  of  all 
"  kinds  ;  anything  tluit  will  float  on  the  water." 

"  Sheilds  was  about  the  same.  Dupont  was  not  as  handy  as 
"  Sheilds  in  a  canoe,  but  he  seemed  to  be  quite  at  home  in  a  30 
"  canoe  for  all  that.    McCoiudiey  was  not  quite  s"<  good  in  a 
"  canoe.  lie  did  not  like  them  (piite  as  well.'  *  *  * 

"  In  some  respects,  canoes,  if  properly  handled,  are  better  to 
"  hunt  in  than  boats,  as  they  cover  more  ground." 

\V.  D.  liyers  says  : — 

"  A  canoe  manned  with  two  white  men  would  be  about 
"  equal  to  a  boat  so  far  as  covering  ground  is  concerned,  IVo- 
"  bably  the  canoe  would  have  a  little  the  best  of  it." 

Again  he  says  that  a  canoe  will  stand  as  much  sea  as  a  boat 
and  hunt  in  Just  as  rough  weather. 

Bragg  says  : — 

"  Others  things  being  ecpial  the  man  that  covers  the  most  40 
"  ground  will  get  the  most  seals.  I  think  a  canoe  would  go 
"  farther  iii  a  day  than  a  boat  with  two  good  men  in  her.  If 
"  the  canoe  was  rigged  with  rowlocks  and  oars,  two  good  men 
"  in  a  canoe  would  go  over  more  distance  than  a  boat  with  a 
"  boat-puller  and  steerer." 

lie  also  says  that  the  hunters  on  the  "  Carolena  "  bad  a 
good  reputation, 

lie  says  again  : — 

"  Canoes  will  stand  rough  weather," 


TDB  CAROLINA. 


98 


After  Hoaling  on  tlio  couHt  in  the  gpring  of  1886,  the 
"  Carolena  "  left  in  tho  nmnth  of  Juno  fully  equipped  luul 
provisioned  for  ii  Healing  voyage  in  Huliriiig  Sua.  She  liad 
four  canoes  and  a  Btcrn-boat.  Her  crew  connigted  of  a  maHtor, 
wlioac  name  was  Janiea  Ogilvie,  and  a  mute,  Jainea  Blako, 
and  a  crew  of  four  hunters  and  live  seamen. 

It  was  intended  that  she  should  remain  in  Itehriiig  Sea  as 
long  as  possiliie,  at  least  until  after  the  end  ol  August,  and  she 
was  fully  equipped  and  provisioned  to  remain  for  that  period. 
10  On  the  1st  day  of  August,  at  ahout  0  P.  M.,  whilst  in  Hehring 
Sea,  at  a  distance  of  ahout  65  miles  t'rom  the  nearest  land  she 
was  seized  hy  the  United  States  Revenue  Cutter  "  Corwin." 
At  the  time  of  sei/.urc  she  had  on  hoard  G85  seal  skins,  12 
grey  pup  skins  and  one  hair  seal. 

The  facts  relating  to  the  seizure  are  detailed  in  a  report 
dated  7th  August,  1886  that  Captain  Ahbey  made  to  the 
Secretary  of  the  Treasury  as  follows : — 

"OnSunday,  August  1st,  1886,  while  cruising  ahout  65  miles 
"  south-cast  of  St.  George  Island,  the  British  schooners  'Thorn- 
20  "  ton  '  and  'Carolena'  were  found  with  boats  down  engaged 
"  in  getting  fur  seals,  as  each  boat  was  taken  in  tho  act,  and 
"  had  freshly  killed  seals  on  l)oard,  tho  schooners  were  seized 
"  for  violation  of  section  1956  of  the  Revised  Statutes,  and 
"  taken  in  tow  to  Ounalaska." 

And  again  in  the  log  of  the  Revenue  Cutter  "  Corwin  "  the 
following  appears  : — 

"  7.30   P.  M.  Stopped  rod  seized  the  schooner  '  Carolena ' 
"  of  Victoria.     Took  all  arms  and  aniniunition  on  hoard  the 
"'Corwin.'    Position  of  the  'Carolena,'  when  she  was  seized, 
30  "  Longitude   168^   10'  west  ;  Latitude  55°  30'  north." 

At  the  time  of  seizure  she  was  carrying  the  British  flag,  and 
was  on  good  sealing  ground  and  had  good  weather. 

John  Cotsford  says: — "  We  were  all  day  after  the  seals  on 
"  the  day  when  we  were  taken.  Wo  were  catching  them.  I 
"  had  some  in  my  canoe,  and  I  believe  the  others  had  also.  I 
"  think  Ned  Shields  had  the  most.  I  think  that  he  (Shields) 
"had  thirty-four,  but  I  am  not  sure  ;  I  tnink  that  is  the 
"  number  ho  had.  I  don't  know  the  number  I  had,  but  I 
"  think  it  was  under  twenty.  I  consider  thirty-four  seals  as  a 
40  "  ^'*"'y  goo^l  day's  shooting  for  one  boat.  Twenty  is  a  very 
"  good  day,  and  tifteen  is  a  good  day,  too. 

He  jiroceeds  : — "  I  think  we  were  scaling  the  day  before,  and 
"  on  the  day  before  that  too.  We  were  tlien  in  the  same  place. 
"  We  were  becalmed  three  days  before  we  were  seized,  and 
"  we  caught  seals  every  day  ;  we  were  doing  very  well  We 
"  had  not  finished  our  scaling  that  day  when  the  seizure  took 
"place.  We  would  have  gone  on  more,  and  had  a  fair  chance 
"of  catching  more  seals." 

And  again  he  says : — "  We  caught  76  the  day  of  seizure." 

g/j      This  is  corroborated  by  the  log  of  the  "  Corwin,"  where  it  is 
stated  : — 

"The  British  schooners  ' Thornton '  and  '  Carolena '  were 
"found  with  boats  down  engaged  'n  killing  fur  seals,  as 
"  each  l)oat  was  taken  in  the  act  and  had  frostily  killed  seals 
"  on  board." 


K.  i:u, 

liiK'  10. 


'■'a. 


1{.  :m, 

liiii-  10. 


K.  ;i!i:t, 

linn  :<1. 


1  f 


-  if 


94 


TUR  CAROLINA. 


Seo  also  evidence  of  J.  II.  Doii^laiw,  u  witnosa  examined  in 
the  proBecutiun  of  tlie  "Cuiolena  "  at  Sitka,  wlio  says : — 

R-  M-  "  During  this  season   from  May  till  November,  the  fur  seal 

"  are  plenty  in  the  waters  adjacent  to  the  I'rilnlotf  Islands  and 
"are  migrating  to  and  from  these  Islands,  and  uro  at  all 
"  times  very  plenty  Iwtwccn  [Tnimuk  Pass  and  said  islands  in 
"a  track  aboui  30  miles  wide,  which  seems  to  bo  their  high- 
"  way  to  and  from  said  islands.  The  schooner  '  Carolena'  ami 
"  her  boats  when  seized  were  directly  in  this  track.  I  was  present 
"  at  time  of  seizure." 

From  this  it  appears  that  at  tlie  very  time  of  seizure,  the 
"Carolena"  was  on  good  ground  and  was  making  large 
catches. 


10 


H.  :t'.ii, 

liiK'  10. 


A\>.  ••ir':w 


u.  382,  After  seizure,  the  "Carolena"  wos  towed  toOunalaska.  On 

arriving  tlicro  the  canoes  and  boats  were  taken  ashore  and 
never  brought  back  ;  the  master,  male  and  crew  remaining  on 
the  schooner  at  a  short  distance  from  the  •'  Corwin."  They 
were,  however,  told  that  half  the  crew  could  go  ashore  at  a 
time.  Alter  having  been  kept  nt  Ounalaska  for  abount  ten 
days  the  crew  of  the  "  Carolena  "  were  sent  to  San  Francisco  20 
on  the  American  steamer  "  St.  Paul." 
H.  :>K<,  At  Ounalaska  a  considerable  quantity  of  (irovisions  were 

transferred  from  the  "  Carolena  "  to  the  steamer  "  St.  Paul " 
of  which  no  inventory  appears  to  have  been  taken  by  the 
United  States  authorities.  The  crew  were  put  to  a  consider- 
K.  loa,  liiiu  2.  able  expense  in  going  to  San  Francisco,  and  also  whilst  at  San 
Francisco,  and  in  going  from  there  to  their  homes,  part  of 
which  was  paid  by  the  owner  and  part  by  themselves  indi- 
vidually. 

The  master  and  mate  were  taken  under  arrest  to  Sitka  and  30 
there  on  the  25th  August,  1886,  a  criminal  charge  was  preferred 
agninst  them  for  having  killed  fur-seals  within  the  limits  of 
Alaskan  territory  and  in  the  waters  thereof;  on  the  28th 
August  were  arraigned,  pleaded  not  guilty  and  admitted  to 
bail  on  their  own  recognizance  in  an  amount  of  f  500  each  to 
stand  their  trial  for  said  olfence.  James  filake  was  tried  on 
the  6th  September  before  a  jury,  fo  Mid  guilty  and  condemned 
to  10  days'  imprisonment.  He  retained  a  counsel  for  his  de- 
fence at  a  considerable  expense. 

.Tames  Ogilvie  after  he  was  admitted  to  bail  and  before  the  40 
day  of  trial,  wandered  away  into  the  woo  Is  and  was  afterwards 
found  with  his  throat  cut. 

The  "  Carolena,"  her  tackle,  apparel,  canoes,  boat,  cargo  and 
furniture  were,  on  August  28th,  libelled  in  the  United  States 
District  Court  of  Alaska  at  the  instance  of  the  United  States 
District  Attorney. 

Her  owner  appeared  by  counsel,  and  after  trial  the  vessel 
and  everything  seized  was,  on  October  4th,  condemned  and 
declared  forfeited  to  the  United  States. 

The  seizure  having  given  rise  to  the  diplomatic  correspon-  50 
dence  previously  referred  to,  the  United  States  Government, 
on  January  26th,  1887,  ordered  the  vessel  to  be  released. 


THR  CAROLINA. 


96 


Tliis  order  not  having  been  o1)eycd  by  the  United  States  K-  ion, 
Marshal  to  whom  it  woh  addressed,  additional  correspondence 
toolc  place,  and  it  was  not  until  after  December,  1887,  that  tlie 
owner  was  informed  by  letter  of  the  United  States  Marshal 
that  her  release  had  been  ordered. 

The  vessel  had,  in  the  meantime,  remained  uncared   for  on 
the  beach  at  Ounalasku  and  had  become  a  wreck. 

Had  the  seizure  not  taken  place,  or  had  the  vessel  been 
restored  in  time,  her  owner  would  have  used  her  for  the  sealing 
10  in  1887,  both  on  the  coast  and  in  liehring  Sea. 

Her  Britannic   Majesty  claims  the  following  damages  as 
resulting  from  the  premises : 


40 


Valiiu  iif  VcaiMil 9 

Flag 

Knur  CttiiiK'H  ami  initHt  

Oiiii  liiint 

Nniitiual  iiintniiiientii 

Ciwli  (<>Kilvii') 

Hix  aliiit  Koo"  »t  9ri<) 

KivpriHcHiit*;*! 

Ifcdywi'ii  liill  

WilloHgliliy  t'liirk,  iliiirtcfH  at  Sitka 

IiiBiiraiico 

.1.  D.  Wunt'ii,  i'\|»'iiNi'H  to  (Htitwa,  putting  in  cluini     . . 

Tinin  and  iH-rsKnul  t'X|H'nMi»s  (if  tiwner  . .         

Twu  taiiksi  for  witter  ami  laljimr  |ii<ttinir  in 

Twelve  water  liarrelH  at  SJ.!)0 

Kxiieiimw  Mate  lllnke  to  Victoria 


Trnnh|Kirt  of  crew  and  ex|Kinse8  at  San  Krancixcn,  |>aiil 
liy  Minmie 

Kxpt^nsex  n'niaindcr  of  cr«'W,  nay 

Chronometer 

Say  one-lialf  hIi>|>  chest 

Four  gaffs  at  J2 

Two  8|M)ari)  at  93 


Rstiniatwl   value  uf   iiroviHioiis  and  anununition  wliioli 


iniatwl   value  uf   iiroviHioiis  and  anunu 
would  have  lieen  left  after  a  full  voyage, 


Hay. 


Artichw  cimtaine<l  in  vouiher  No.  I  H.  (these  not  U'ing 
consumable  and  on  IsMnl  when  sei/.ine  t<H>k  (ilacu). . 

Articles  contained  in  voucher  No.  4  li.  charge<l  for  saniu 

reason 

Folluning  items  from  vouchi'r  No.  fl  A.;— 

Monkey  wrvnch $1  26 

One  compass 7  50 

Five  pairs  "foot  oars  .           8  76 

Five  |>air»  rowlocks 2  60 

Two  cuni|ia8»es  at  $3 GOO 


4,000  00 
12  00 

24K  <N) 

100  00 

76  00 

600  00 

.too  00 

UlO  <N) 
760  00 
.'iCO  OU 

xa  00 

162  00 
260  00 
140  02 
SO  00 
100  00 

71  72 
60  00 
100  00 
100  00 
8  00 
R  00 

200  00 

14  00 

0  70 


26  00 


i 


fi" 


TBI  OAROLRNA. 

Vuiiclivr  No.  8,  niiK  lant<-ni f 

•I"        It,  thmi  atritlM  ftir  tiinkii 

II,  iiiif  rifli- 

in,  Hniiilricit 

N,  H|iirit  ciiiii|««Mi 

H,  liroMi  «ini|>aiM , 

IH,  c'mrtH,  Ac 

'■!i>,  <li'iiiijiilinH   


llo 
ilo 
(tu 
(to 
•lu 
•l<> 
do 


4'-',  oiiP  wt   iflomliriff  UoN,   W,L'5;    liiuxii 
hIii'Hm,  oiio-lmll'  vnlii.',  $:>..     


llo        4S,  two  (loz.  fiyiiicli  kiiivfM. . . 

Out'  luiir  HwiTpa 

On«i.tiokiii|{i<tuv(> 

Bc<l(lin(f 


1  IN) 

H  (M 

10  (Nl 

iH  rr. 

•£i  ft) 

B  25 

ai  as 

»  m 

0  2b 

■i  fiO 

6  00 

"6  00 

no  no 

K»tiii,iit..(l  vnliir  of  iirticI.H  tlint  wire  (loiilitlcsB  on  iKjnrH 
vmncl,  lint  which  innnot  now  iHniNriallynn.ntionwl, 

"">' .'       aw  00 

Number  of  xvhU  on  Ixiird  of  v.s».l  «  hen  sii/.«|,  OHfi  ut  *7      4,7<r.  o» 
Twulvu  |in|iN  nt  ftj ^4  OO 

Halancfof  intimiiti'il  ciitch,  INWI,  fr,,in  l»tto;ilHt    Viiir 
fonr  nuiotH  mil  oni'  uliin   lioiit :    '.liM  skinx  «t  If 

'''"•'" (i,!lf.«  00 

Nit  vahu-  of  u|i|injxiinntt<  catch  for  1887,  auy 5  (100  00 

Kx|K>ni«.H  and  hardxhip  of  cri'W,  !l  niin  nt  $500,  ..nch. . . .       4,fiOO  00 

For  illi.jfal   arrcHt,  iliti iition,    iin|.ri«)nnicnt  and   other 

harilHlii|i,  of  .la «  ( t^'ilvir,  Slastir  of  "Carolina  ".       4,000  00 

Kor  ill..)jal   aiTi'st,  d.tintion,    InipriMOinunt  and   other 

narilHhi|>,  of  .laniih  Hlake,  mate  of  "(Jarolena  " 4  000  00 

938,(I8!»  •£, 

Tnterent  on  all  al)ove  amo>int»  at  the  rate  of  7  |H-r  nut 
from  the  date  of  liisn  until  time  of  |iiiyuient. 


10 


20 


1886. 


TIIK  "THORNTON'." 
Claim  No.  2. 

The  "ThoriitDii "  was  u  ro^'iHtorofl  I»ntiHh  sclioiincr. 

T1k>  rcgiHter  ot'tlu?  nti'iirii  Hi'liontuT  '•Thornton"  sIiowh  hIio  .\|..  ii.  im. 
was  first  r('j?iHtore<l  in  1864;  anil  that  «ho  was  rogintcri'd  aj^ain 
in  1871  aa  a  saiHng  sl()0|i.  She  was  ."il  t'ect  ami  one-tcMith  of  a 
foot  lonjr,  li>  fi'ct  2  iiiciii's  broad,  5  fi'ft  I  iiuli  in  depth  ;  her 
rogistercfl  tonnage  was  208<!  gross,  und  her  owner  was  JatncH 
10  Douglas  Warren,  of  Victoria. 

The  vessel   was    ineasiirod    hy    W.    Walker,  tin;  surveyor,  .\|..  r,  |ii;i. 
for  purposes  ol'  registration  as  a  steam  schocmer  in  1885. 

The  deductions   made   in   such  moasureinonf    in   allowing  i."  •■<■•!>. 
space  for  steam  power,  reduced  the  net  registered  tonnage  to 
22-30  tons. 

Cajitain  Warren   bought  the  vessel  in  18t)4  at  the  rate  of  K.  !tin. 
$1,800.     She  wns  turned  into  a  schooner  in  1877  ;  had  a  white 
oak   frame,  natural  crooks,  and  a  bottom  of  ceilar  planks,  the 
rest  of  the  material  consisting  of  Douglas  fir. 
20      After  making  a  trip  as  a  schooner  she  was  practically  rebuilt 
and  made  a  new  vessel,  fastened   with  copper  from  the  water 
line  down.     8h<'    was   also   coppered.     Kxclusive   of  Captain  If  :»>:<. 
Warren's  «)wn  time,  which  ho  gave  in  supervision  and  work, 
the  expenditure  for  rebuilding  the  "Thornton"  amounted  to 
$3,500. 

She  was  overhauled  every  season  carefully.     Cook,  a  ship-  u.  s-j-i 
wriglit  and  proprietor  oi"  shipyards  tor  many  years  at  Victoria 
describes  the  work  done  in  the  rebuilding,  and  the  care  with 
which  it  was  done,  and  states  that  when  this  work  was  com- 
30  pleted  she  was  practically  a  new  ship. 

Cook  values  the  ship  in  1881,  without  her  steam  power*  n.  smi. 
at  about  $5,200.  He  testities  to  thecare  taken  of  her  by  Captain 
Warren,  and  that  the  vessel  was  in  as  good  condition  as  ever  in 
188G,  when  he  last  saw  lier. 

Walker,    shipwright   and    jiroprietor   of  shipyard,   valued  '«'•  "*•'" 
tlio  vessel  in  1886  at  §6,000,  and  he  festilies  that  in  that  year 
she  was  in  good  condition. 

Warner  agrees.  K.  sm. 

In  1881   auxiliary  steam  power  was  j>laced  in  her  at  a  cost  \i.:kk>. 
40  of  $3,000. 

Tliomson,  Inspector  of  madiinery  and  boilers  for  tlie  province  i;.  us?. 
of  British  Cohnnbia,  produced  the  otKcial  inspection  record  of 
this  vessel,  and  explained  that  the  nominal  horse  power  being 
(1.21)  for  purpose  of  registration,  rejuesented  a  real  horse  jiower  i;.  .wi. 
of  from  13  to  15,  and  having  read  the  descriittion  of  the  boiler 
B8— 13  07 


Ml 


yili 


i\ 

I'll 


08 


THK  THORNTON, 


It.  fi'.m. 


I!   'M 


It.  |i>'.>l 


|{.  nur. 


K.  ".f,t2. 


n.  10J8-21I. 


li.  '."II. 


li.  '.h;:.. 


I!.  ii;|ii. 


I!,  '.w.. 


and  c'lijfiiio  in  tho  rwonl,  jjavo  tlio  »)piiii()ii  tliat  it  would  liiivo 
cost  iVom  if'J.tiOit  to  !*2,70()  to  construct  tlieiii.  Awkoil  iiieroHs 
cxaniinalioM  wlii'tlicr  lie  would  say  that  tlio  boiler  and  on^ino 
luiviiijj  liocn  in  us.-,  would  hoII  lor  anything;  like  7A  jkt  contort' 
i*'J.70i»,  lioniiHWorcd. 

"  I  have  no  douhl  in  the  world  it  would."  Asl\>"l  his  ronson 
lor  that  he  ixplained  thiit  t'roni  the  report  it  would  appuu.' 
that  everytliinjj  was  in  cxcollont  condition. 

(lrant,(hiet'eniiint)ei  ot'tho  (Jovornniont  stcaiiHT  "(Juadra," 
ciirrolxiratt'd  'i'lioiii«(in'H  ntatenient.  lo 

Mullen,  for  neven  yeais  inanaijer  of  the  Alhion  Iron  Worku, 
who  had  practi'al  know!od;ri'ot  the  huildinj;  of  nuichinorv,  and 
tho  cost  of  engines  and  boili-rs  from  18H(I  to  1M!I2,  Htates  that 
it  woidil  lie  worth  !?:J,!iri0  to  put  the  engine  in  the  "Thornton," 
exclusive  of  the  carpenter's  wiuk. 

(iiay,  the  owner  and  jiroprietor  of  tho  Victoria  Machinery 
l>epot,  and  inspector  of  hoilersand  machinery  forthe  CJovern- 
ment  in  1S82,  havinu'  before  him  the  inspection  record  of  the 
"Thornton"  already  referred  to,  testities  that  lie  personally 
inspected  the  boiler  and  engine  of  tho  "  Thornton  "  ;  that  the  20 
record  was  in  his  handwriting;,  and  that  the  cost  of  putting 
the  boiler  and  engine  into  her  would  be  l*2,t!00,  that  would 
represent  siiuply  the  cost  of  putting  the  engine  and  boilers  and 
necessary  machinery  in  place;  it  wtnild  not  inclndo  any  carpen- 
ter work  in  connectioii  with  it. 

Lewis,  some  time  agent  of  the  Department  of  Marino  and 
Fisheries  at  Victoria,  and  marine  surveyor  for  underwriters 
in  San  Francisco,  produced  the  survey  of  the  "  Thornton  " 
made  by  hini  in  1883  for  the  insurance  compau}'.  From  this 
rep  rt,  corroborated  by  Lewis  on  the  stand,  it  appears  that  in  iJO 
No  jmber,  Issi,  the  '• 'Ihornton  "  was  reported  sea- worthy 
and  in  good  condition.  lleex])lained  that  this  report  signitied 
that  she  was  in  tlrst-class  coixlition. 

Cavin,  shipwright,  surveyed  the  "Thornton"  in  1883  for 
purposes  of  insurance  ;  saw  her  in  LsHti ;  observed  no  difference 
between  her  in  that  year  and  in  1^83.  Values  her  at  between 
^5,000  and  .<t),000. 

He  states  that  he  did  not  think  .S.i,000  or  *6,000  could  re. 
place  her  with  her  machinery  ;  that  he  ha<l  not  her  machinery 


in  mind  when  he  valueil  her. 


40 


William  Sleight hulni  worked  on  this  ship  as  ship  carpenter 
cm  an<l  otffor20  years.  IFe  values  the  vessel  at  ?.^,000  before 
the  macliiiiery  wa.s  put  in.  He  worked  on  the  vessel  after  the 
machinery  was  put  in.  and  values  the  machinery  and  all  at 
something  over  §7,0(10. 

Xorman,  mate  and  engineer  of  "  Thornton  "  in  1880,  testi- 
fied that  the  condition  of  the  engine  and  boilerof  the  •' Tliorn- 
ton  "  was  good.  "  The  engine  worked  nice  and  smooth,  fed  all 
right  and  drove  about  f)  knots."' 

The  "  Thornton  "  was  used  by  Captain  Warren  in  the  winter  5q 
and  fall  for  coasting  purposes. 


TUB  THORNTON. 


09 


The  hull  and  iiiucliinGiy  woro  insured  iit  LloyiU  lor  ^5,s:{s,  u  nwn. 
from  tho  iHt  Marcli,  IHHi;. 

Tlio  aBHistant-treuBurv  iigfut  oftho  TTiiited  States  iu  1>00, 
reported  to  the  chief  treasury  agent  of  tlio  I'nitoil  State.-* 
Oovornmeiit  nt  tlio  tS<>al  Islands  tiiat  the  vesst'l  at  that  time 
wuHinndilaiiidatedand  ruint-d  condition.  Ifc  further  rc|M)ri.t: —  n  :hiii. 
"  I  ahoidd  think  when  new  that  ??7,000  would  he  u  lair  jirice 
for  hor." 

It  is  claimed  that  ?7,000  is  a  fair  valuation  under  the  cir- 
10  cumstances  for  this  steam  schooner  at  the  time  of  hor  sci/iirc. 


Hi' 
fa-' 


m 


Captain  Warren  nnmaged  a  llect  of  sealinjf  vessels  in  IH80, 
composed  of  the  '•Thornton",  "  W.  I'.  Savwanl  ",  "  ;\nna 
Heck",  "(irace"  and  "Dolphin".  All  these  vessels  were 
engajjcd  in  coastinj;  and  sealing  in  1s82.  In  1H8;{,  the  "Anna 
Heck,"  "  Thornton  "  and  "Sayward"  were  so  enjjaged. 

In  1884  he  had  the  same   five  out   scaling:  in  these  years 
their  sealing  operations  ^^  r"  conliiied  to  the  coast.    He  super- 
intended  the   fitting  out  ol'  the  vessels  on  all  of  these  occa- 
sions ;  lie  thoroughly  nnderhtood  outfitting  and  always  took 
20  care  that  tlicy  never  ran  nliort  of  provisions. 

In  1886,  Warren  W  ■  li  out  the  live  vessels  named  for  sealing, 
as  well  as  the  "  Hustler."  1  lie  "  liustler,"  however,  did  not 
go  in(i>  Ik'hring  Sea.  Four  m  the  live  vessels  named  returned 
safely  to  port  at  the  enci  ot'tlie  sealing  in  lS8t),  without  having 
been  actually  seized  ;  hut  having  heard  of  the  seizures  their 
voyages  were  seriously  interfered  with  on  account  ol  fear  of  being 
seized  tltemselves. 


Tlic  "Thornton"  was  seized  in  that  year;  she  was  fitted  ij.  ■pn;. 
out  for  tlie  coast  sealing  in  tlie  spring  and   Warren  supjilied 

80  lier  for  the  Behring  Sea  trip  at  Ciuyoquot.  The  amount  of 
rirovisions  actually  put  on  board  her  there,  namely,  about  $533 
would  not  represent  all  that  be  proposed  to  put  into  the 
"Thornton"  for  provisions  that  season;  he  had  arranged  to 
take  and  did  take  extra  supplies  on  board  tlie  "  Dolphin  "  to  ^  ,,„^ 
give  the  "Thornton"  in  Behring  Sea,  the  latter  being  a  small 
vessel  and  cramped  for  room.  He  arranged  for  a  place  of 
meeting  in  order  to  give  them  the  additional  supplies ;  his 
custom  had  been  to  work  his  vessels  so  that  they  could  assist 
each   other  whenever   required ;  they   hunted   on   the   coast 

40  together,  and  they  entered  the  Heliring  Sea  about  the  same 
timi'.  lie  intended  to  renuiin  in  Behring  Sea  until  the  end  of  u,  <mi'x 
Septend)er  in  1886,  aiul  his  supplies  were  arranged  accordingly. 
Vessels  coming  home  usually  had  supplies  over,  canned  goods, 
Ac,  which  could  be  used,  for  another  season.  Ilis  ship  the 
*'  Dolphir.  "  was  onl}'  60  miles  from  the  "  Thornton  "  when 
the  latter  was  seized  •  they  were  fishing  the  same  grounds, 
south  of  the  Pribilov  ^slands ;  he  had  plenty  of  supplies  for  ^  .,|,| 
the  "Thornton"  if  she  required  any,  on  board  the  "  Dolphin." 
The  crew  consisted  of  13  men  besides   the  master,  Captain 

50  Guttormsen,    and    Mate    Ilarry     Norman,    who    acted   as 
engineer  as  well. 


il 


MM 


100 


TUB  THORNTON. 


.\|.|>.  H. i»6.  Tlio  "Thornton"  sailed  on  lier  Bolirini;  Sou  trip  on  the 
27th  May,  she  c-arrietl  lour  sealing  boatB  and  a  stern  boat,  hIic 
reaihed  IJohring  Sea,  July  -nd,  began  sealing  July  4th  ; 
eontinued  sealing  until  seized. 

li.iil.  !w.  On  the  Ist  August,  when  the  boats  returned  with  3'^  seals 

the  "Thornton"  was  seized  by  the  cutter  "  Corwi"  "  ;  an 
officer  was  put  on  board,  arms  and  anmiunition  were  taken 
and  the  British  Hag  was  ordere<l  down,  the  vessel's  position 
being  that  day  recorded  in  the  log,  latitude  o5.38  N.,  longi- 
tude 168"20  \V.  ;  the  weatlier  was  calm  and  clear;  vessel  was  10 
taken  in  tow  by  the  cutter  to  (Junalaska.  where  a  watcliman 
from  the  cutter  was  put  on  board,  and  the  cargo  taken  ashore. 
On  the  2nd  August  an  oHiier  i'roiu  the  cutter  came  on  board 
and  took  the  ship's  papers  ;  the  watchman  Irom  the  cutter 
remained  on  board  ;  all  the  boats  were  taken  on  shore  from 
the  schooner. 

Captain  Abiiey  on  the  prosecution  at  Sitka  testilied  as  fol- 
lows : — 

A|.|i.  II.  f*:'.  "I  found   the  four   boats   of  the    British    steam    schooner 

"'Thornton'  of  Victoria,  B.(l,  engaged  in  killing  fur  seal.  20 
"  Each  boat  had  in  lu'r  from  three  to  eight  freshly  killed  seal, 
"  arms  and  ammunition,  rowers  and  hunters,  who  stated  that 
"  tliey  belonged  to  said  schooner  '  Thornton,'  and  were 
"  engaged  in  taking  or  killing  fur  seal.  Home  of  them,  if  not 
"  all,  were  seen  shooting  at  the  fur  seal  which  were  swimming 
"  in  their  neighbourhood." 

Lieutenant  Rhodes : — 

liiid.  SI.  '*  I  was  on  the 'Corwin' at   the  time  the  'Thornton'  was 

"seized  on  that  day.  We  first  picked  up  a  boat  bearing  the 
"  name 'Thornton.'  It  had  about  eight  dead  fur  seal  in  it.  30 
"  The  men  in  the  boat  bad  breeeliloailing  rifles.  We  afterwards 
"  picked  up  another  boat,  and  tlien  sighted  the  schooner'  Thorn- 
"  ton,'  ami  went  on  board,  and  was  put  in  charge  of  her.  We 
"  afterwards  picked  up  two  more  itoats.  The  men  in  the 
"  boats  claimed  that  the  boats  belonged  to  the  '  Thornton ' 
"  and  were  put  on  board  of  her.  There  were  between  fifteen 
"  or  twenty  dead  fur  seal  on  deck  and  one  hair  seal.  These 
"  seal  were,  the  most  of  them,  bleeding,  and  evidently  recently 
"  killed.  TItc  Captain  ami  several  <-/'  the  liunters  said  they  had 
"  killed  twenty-one,  I  think  it  was  fur  seals  that  dai/,  and  icould  40 
"  have  (jot  more  if  thri/  had  had  mare  day  liyht,  and  if  the  cutter 
"  had  not  come  up." 

On  August  4th  an  ofhcer  from  the  cutter  returned  one  boat 
and  gave  four  of  the  "  Thornton's"  crew  liberty  to  go  ashore 
from  8  A.M.  to  6  I'.M.  eiich  day;  watchman  remained  on 
board. 
.\|.|..  I!. '.t'.i.  August  10th,  an  officer  from  the  cutter  came  on  board  and 
took  provisions  from  the  "Tiioriiton,"  of  which  an  inventory 
appears  taken  from  the  log  U.  9^5-93(3,  for  use  of  the  United 
States  in  transferring  prisoners  to  San  Francisco  on  board  50 
steamer  "St.  Paul." 

August  lltb,  an  otKcer  from  the  cutter  came  on  board  and 
took  two  Indians  who  were  on  the  "Thornton  "  and  sent  thera 
to  Sitka  in  the  schooner  "tiau  Diego,"  they  also  took  one  of 
the  schooner  "Thornton's"  boats. 


THE  TUORNTON. 


101 


A|>|>.    It.   IIHI. 


August  I2tli.  Thoy  wcro  orderod  to  get  their  grub  on  board 
the  cutter. 

August  13th.  The  schooner  "Thornton"  was  stripped  and 
lett  without  a  watchman  on  board. 

From  August  15th  until  August  24tli,  the  captain  and  mate 
were  on  board  the  "  Corwin,"  no  permission  being  given  them 
to  go  ashore. 

August  25th.  The  master  and  mate  were  taken  on  shore  and 
brougiit  before  the  court,  charged  with  having  violated  the 
10  laws  of  the  United  States  in  sealing  in  Alaskan  waters.  The  a 
captain  retained  Mr.  Clarke,  an  attorney,  to  act  for  him  in  his 
case  for  $500,  giving  an  order  on  Captaii\  Warren  for  that 
amount. 

On  August  30th,  they  were  tried  by  a  jury;  on  the  Slst,  A|.p.  it.  sd. 
on  a  verdict  of  guilty,  the  captain  was  lined  §500  and  sentenced 
to   30   days'   imprisoimient ;    the   mate   $300   and   30   days' 
imprisonment. 

Referring  to  this.  Captain  Abbey's  report  Sept.  22nd,  1886, 
to  the  Secretary  of  the  Treasury   says: — '"The  masters  and 
20  mates  of  tlio  seized  sealers  were  all  criminally  convicted  and 
sentenced  to  various  terms  of  imprisonment  and  fines." 

Tlie  master  and  mate  were  in  jail  from  the  1st  to  the  30th 
September,  when  they  left  Sitka  in  the  "  Idaho,"  arriving  at 
Victoria  on  the  lOth  October.  During  their  detention  at  Sitka, 
they  were  temporarily  allowed  out  of  jail,  accompanied  by 
one  of  the  marines  as  a  guard ;  they  were  not  allowed  to 
go  out  without  him ;  when  they  were  released  from  jail  no 
provision  was  made  for  them  and  they  were  penniless;  the 
mate  had  to  sell  his  watch  to  get  something  to  eat. 
30  Captain  Warren  paid  the  passage  of  the  master  and  mate, 
amounting  to  §100. 

The  crew  were  sent  to  San  Francisco  by  the  United  States 
authorities  on  the  "  St.  Paul," 

No  provision  was  made  for  the  master  or  mate  for  sleeping 
on  the  cutter  ;  they  were  given  neither  buidc  nor  hammock. 

The  "Thornton,"  her  tackle,  apparel,  boats,  cargo,  and  furni- 
ture were  libelled  in  the  court  at  Sitka,  by  the  United  States 
District  Attorney  on  August  28th. 

Her  owner  appeared  by  counsel,  and  after  the  trial  the  pro- 
jQ  perty  seized  was  on  the  24tii  October,   1886,  condemned  and 
declared  forfeited  to  the  use  of  the  United  States. 

The  seizure  having  given  rise  to  the  diplomatic  correspon- 
dence already  referred  to,  the  United  States  Government  on 
January  20th,  1887,  ordered  the  vessel  to  be  released.  This 
order  not  having  been  obeyed  i>y  the  United  States  Marshal 
to  wliom  it  was  addressed,  additional  correspondence  took 
ploce  and  it  was  not  until  late  in  1887  that  the  owners  were 
informed  that  her  release  had  been  orderod. 

The  vessel  had,  in  the  meantime,  remained  uncared  for  ou  \i.  n  i. 
60  the  beach  at  Ounalaska  and  had  become  a  wreck. 

Had  the  seizure  not  taken  place,  or  had  the  vessel  been 
restored  in  time,  the  owner  would  have  used  her  for  trading 


■il 


I!.  '.ini. 

K.  Kill. 

I!,  nil-.'. 


Ai.|..  I!.  Sll. 


K.  i>; 


I     ,1     '-1' 


|{.  '.Mil. 
I!.  Irtlii. 

K. '.111. 
K.  !KJ7  .■<. 

It.  IIKI. 
li.  :iii;. 

I{.  KISil. 

i;.  ■Ml-,. 


.\|..  1!.  SI. 


102 


THE   THORNTON. 


in  the  winter  and  for  sealing  both  on  the  coast  and  in  Behring 
Sea  during  the  year  1887. 

Iler  Britannic    Majesty  claims   the  following  damages  us 
resulting  from  the  premises : 


.?      7,IWH'  (II) 

12  (K» 

VM  10 

21'  IK) 

210  00 

9  no 
r.'f)  no 

4;t'.i  'M 


N'aluf  (if  vcs.11'1 . 

Kl'W 

.'t  lilli's,  (Mmlins)  at  .'<4r>.70 

1   KiH.. 

♦  '»  >lu)t  ^'inis  at  !<Xt  fai-li 

•  inn  iinplc'iiii'iitM  anil  tiHils.  say 

Sliip  elii'st,  say 

Valuf  iif  aitiili'>.  in  Invi-ntcpiy  nut    |iici|»-ily  lii-lunffiiii;  tu 
the  >lii|i,  nn  Ix'aril  at  tinii' 111  si'i/ni'i'. 

I'Ntini.itcil  vain  ■  1  if  articli  s  h  liiclj  wii(Ml.iiilit!i>s(in  luiaid 
iMit  wliiih  rannul  niiM  hf  siK'i-iliially  i itiuniil    .  . . 

Kxtra»\iit  of  .sails 

4  ai'uliii),'  lioats  

Watir  t'lwk.f 

Cual 

Water  tanks   

Pri'Miiuni  of  insurancr  paid    

lii-ciilinjr 

(Nist  uf  ilcfciiii- at  Sitka 

I'as.sa;;!.  niniicy  fur  niastii  ami  male 

Ti-c  Ui  cuiinsil,  anil  fm-  dtli.T  li'K'al  cxiicnscs  in  lunnci'tiun 
witli  till' pnpaiatiiin  uf  claims 

'rravilliiij;,  hiitil  and  ntliiT  mri'ssary  c.xpiiiBi's   in  run- 
ncrliiin  with  till' »aid  .sciznrr  and  i-l.iinis 

Kaiiiinus  rif    "Tlriirntun  "    for    iimslinn   anil    Imaidintf 
piiipiisis  fur  ;t  ninntlis  at  .S'liHI 

I'lvpiiisi's  and  liariMiips  .if  cnw,  K)  nirn  at  .S'lOO  carli. .  . .        (i,."pOO  00 


200  IH) 

;fo7  (M) 

(>(HI  UO 

12  00 

20  (Kl 

!M)  (K) 

410  00 

40  00 

500  (Nl 

IIH)  IN) 

7."iO  00 

,000  (K) 

'.l(K)  IK) 


In:!  skinv  at  .■'7  laili,  ai'lilally  siMzi-il 

r..dan<i-  iif  i-,it(li  fur  tin-  itinaiMdir  uf  tin-  srasun  (4  Kiats 

frmn  .\n>,'iist  1st  tu  ll nd  uf  that  numtli  '.l!M  .skins 

.al  ."^7  lai-'Ii , 

lOsiiiii.itiil  ci.asi   and    lli'hrint,'  i^'"»  I'atil.fs  fur  thr  yiar 
ls.'<7  (i„.|  vahir  ufi 


2,.S2I   00 


K.ir  illiwd  arri'st,  diti  iiliun,  imprisumnrnt  and  uthiT 
haril-hip^uf  Captain  I  Mil  till  riisi.|i,  niasliruf  "'rhurii- 
luii  "  and  lAiiirisis  iiuMiiiid  in  luiisi'ipiiini.  thi  ri  i.f.,        4,iilltl  nO 

Ditluas  tu   Harry    Nurn  an.  iiiati'  and   iiiKinicr  uf  tin' 

"  Thurntiin  " 4,1100  IHI 


?ii2,iii;t  04 


10 


20 


30 


Iiitirisl   1.11   all   aUni'  aniiiinits  at  till'   r.itr  uf  7  |«r  nnt 
pii    aiiiiinii  fi.iii'  ilati-  c.t  I iiitil  tniii'  i.f  paynii  lit 


1886. 


■  *i  {':  ,1'.': 


THE  "ONWARD." 


Claim  No.  3. 


The  "  Onward  "  was  a  resifiBtcred   Hritish  schooiier,  of  35"20  \i'-  iv  mi. 
tons  gross. 

After  scaling  on  the  coast,  slio  left  Kvnquot  in  the  beginning  i!.  s-mi, 
of  June,  full}'  equipped  and  i)rovi8ioned,  on  a  sealing  voyage  k'ncV 
to  IJeliring  Sea.  ,';,„:^';;'J; 

According  to  Marketicli,  she  had  eight  canoes  and  a   stern  li.  71.  lin.  .tc. 
10  boat,  a  crew  of  20  men  all  told,  4  white  and  IG  Indians.     It, 

however,  appears  from   the  Record  of  Proceedings,  at  Sitka,  \|i.  w  711, 
and  otherwise,  that  there  were  9  canoes  and  18  Indians.   Daniel  \'|',.  |i  ,-,.-,^ 
Munro  and  John  Marketich  were  respectively,  master    and  '|';"'.sii-' 
mate.  ''"'"■ 

Before  her  deiiarture,  tlie  master  had  been  instructed  bv  "  >*''•>. 
the  owner  to  continue  scaling  as  long  as  possible,  to  be  back  i;.  sn'i,' 
some  time  in  September,  and  to  be  guided  in  a  measure  by  ""  "" 
Capt.  A.  McLean,  at  that  time  on  the  schooner  "  Favourite". 

The  "  Onward  "  commenced   sealing  in  Behring  Sea  on  the  li.  711.  lin.  v<x 
20  12th  July,     After  she  had  taken  507  skins  in    Behring  Sea  ""'•'■  i''"' -='■ 
they  were  transferred  to  the  "  Favourite."     Between  the  time  j^,',,'.  \\  "'' 
of  transfer  and  the  2nd  August,  when  she  was  seized  by  the  .\|..  n.  m. 
United  States  Revenue  Cutter    "  Corwin,"    400   more   seals  ""  " 
were  taken. 

The  schooner  was  seized  carrying  the  Hristish  tlag,  between  i!.  sn,  !„,,  :',s. 
5  and  6   o'clock   A.M.,  at  a   distance  of  115   miles  from  the  jii|,. »';,  '  ' 
nearest  lainl,  "  on  a  well-known  sealing  ground."  [],['.'  x^  '"' 

The  day  before  the  seizure,  about  100  seals  had  been  killed,  "  "- 
and  at  the  time  of  said  seizure,   there  were  lots  around,  the 
30  weather  was  fine  and  the  crew  was  about  to  lower  the  canoes. 

A  prize  crew  of  three  men  from  the  '•  Corwin  "   was  put  in  1;.  7.>. 
charge  of  the  schooner  ;  the  arms  and  ammunition  were  taken  on  M'  ',•  '■'• 
board  the  cutter;  the   master,  mate   and  crew  were  ordered 
down  into  the  cabin  and  hold,  and  the  vessel  was  towed  to 
Ounalaska. 

On  arriving  ihere,  the  canoes  and  boat  were  taken  ashore  1;,  7.-. 
ai  d  never  brought  back,  the  master,  mate  and  crew  remaining 
on  the  schooner  at  a  short  distance  from  the  "  Corwin."    Tiicy 
were,  however,  told  they  could  go  ashore  tour    men   at  a  time. 
40      After  having  been  thus  ke[«t  therefor  about   10  days,  the  1;.  7:1. 
mate  was  ordered  t;    take  10  or  12  days'  provisions    troni  the 
"  Onward  "  for  himself  and  the  crew,  and   to  go  aboard   the 
schooner  "  San  Diego  "  also  under  seizure,  which  was  done.  ii.  >'m, 
l*rovisiiiiis  were  also  transferred  from  the  "  Onwai'd  "  to  the 
American  steamer  "  St.  Paul  "  at  Ounalaska. 

108 


'liii 


104 


THK   ONWARD. 


K.  -«. 

It.  7U. 

K.  K!i:t. 


I!.  S'.H 


A  p.  II. 

liiii-  ;w. 
A|..  II. 
hill'  III. 


A|..  11, 
li.  71. 


li.  .ssil,  liiii   .•< 


A|,.  I! 


I!.  liT. 


H.  KA 
liiii-  I'.'i. 


liii.  III. 


I!.  Mi:t, 
lini-.'pil. 


Tbey  were  tlien  taken  from  Ounnlaska  to  Sitka,  a  12  days' 
journey. 

The  accommodation  tliey  had  on  the  "  San  Diogo  "  was  very 
poor,  she  was  old  and  leaky,  and  about  80  men  had  to  sleep  on 
their  own  blankets  upon  the  lloor  in  a  small  cabin. 

At  Sitka,  the  crew  was  set  free  and  a  few  days  later,  all,  but 
tlie  master  and  mate,  were  taken  to  Naiiainioby  the  "  Corwin  " 
and  put  ashore  at  5  o'clock  I'.M.  without  auy  r  upper,  or  any 
thing  else.  From  there,  they  had  to  find  their  way  to  Vic- 
toria, as  best  they  could,  and  one  of  them  at  least  (TFarkin),  10 
had  to  leave  bis  bag  and  bed  and  what  he  bad  as  security  for 
his  passage.  lie  did  not  arrive  at  Victoria  until  the  2r)th 
September  or  tlie  1st  of  October. 

The  master  and  mate  were  detained  under  arrest  at  Sitka. 
•"'-'.  On   August  25tb,  a  criminal  charge  was  brought  against 

.(.«.  them  of  having  killed  fur  bearing  aninuils  within  the  limits  of 
Alaskan  territory  and  in  the  waters  thereof;  on  August  28th 
they  wt  re  admitted  to  bail  on  their  own  recognizance  to  an 
amount  of  §500  each,  and  finally,  on  the  6th  of  September, 
placed  on  trial  before  a  jury,  addressed  as  robbers  by  the  20 
M\  7.  judge,  found  guilty  and  both  condemned  to  30  days  imprison- 
ment, and  in  the  ease  of  Capt.  Munro,  to  a  fine  of  §200  in  ad- 
dition. 

They  were  tried  separately  and  both  had  to  retain  counsel 
at  a  considerable  expense. 

When  released,  they  both  bad  to  find  their  way  home  as 
best  they  could. 

The  "  Onward,"  her  tackle,  apparel,  boats,  cargo  and  furni- 
ture ,vere  on  August  28th  libelled  in  the  Admiralty  Court  at 
Sitka  by  the  United  States  District  Attorney.  30 

Her  owner  appeared  by  counsel  and  after  trial  the  property 
seized  was,  on  October  4th,  condemned  and  declared  forfeited 
to  the  use  of  the  United  States. 

The  seizure  having  given  rise  to  the  diplomatic  correspoiul- 
ence  previously  referred  to,  the  United  States  Government,  on 
January  26th,  1887,  ordered  the  vessel  to  be  released. 

This  order  not  having  1  eon  obeyed  by  the  United  States 
Marshal,  to  whom  it  was  addressed,  additional  correspondence 
took  place  and  it  was  not  till  Decemlier,  1887,  that  Charles 
Spring,  as  owner  of  the  "  Onward,"  was  informed  by  letter  o*"  '"^ 
the  United  States  Marshal  that  her  release  had  been  ordered. 
Tiie  vessel  had,  in  the  meMiitinu',  remained  uncared  for  on  the 
beach  at  Ounalaska  and  had  become  a  wreck. 

Had  the  seizure  not  taken  place,  or  had  the  vessel  been 
restored  in  time,  her  owner  would  have  used  her  tor  sealing 
in  1887,  both  on  the  coast  and  in  Behring  Sea. 

The  "Onward"  was  built  in  1871,  of  Oregon  pine  ;  she  was 
galvanized  fastened,  a  good  sailor,  well  kept,  put  on  the  ways 
on  several  occasions,  for  the  last  time  in  1 886,  when  she  was 
in  first-class  condition  with  brand  new  sails.  5Q 

Chas.  Spring,  her  owner,  values  her  at  least  at  §4,000  in  1886. 
lie  says  she  was  fully  worth  that  and  ho  would  not  have  sold  her 


THE   ONWARD.  105 

for  that  sum  at  any  tiiiu!  durint;  1886.     II.  J.  Cook,  an  ex- it.  sniv 
perk'Hcotl  sliiii  builder  and  owner  ol'  ways  at  Victoria,  wlio  re- 
paired the  "Onward"  in  1878,  1881  and  1880,  estimates  her 
cost  at  between  UMO  to  Sf5,000. 

Oilando  Warner  i)lace8  the  same  value  on  the  ship.  i!.  «.v.. 

Samuel  !Sea,  also  a  ship  builder  of  largo  and  long  expcri-  it,  .s.Mi. 
oneo,  who  was  familiar  with  the  "Onward,"  values  her  hull, 
spars,  sails,  stern  boat,  anchors  and  everything  of  that  kind  at 
about  $4,500. 
10      Alexander  Watson,  jr.,  values  the  vessel  at  $4,325  to  $5,000  it.  m.-,s. 
without  her  sealing  outlit. 

Walter  Walker  places  the  value  at  $4,000.  it.  .-c'l. 

Her  Britannic  Majesty  claims  the  following  damages  as  re- 
sulting from  the  premi.ses  : — 

Valu.-  iif  Vf»s<-1 *4,'*»» 'XJ 

I'liiiiimi]  .if  iiisiiniiiic- |i:ii.l.             :i4(l  (HI                   |{.  Will. 

.\iiiiiaiiiH>ftl  .*iS .  L'.VJ  IKI                    U.WA 

TwvUf  KIlllH  111  *_'■> WKt  ()tl                      I!.  S<B). 

l»iiiM\tiuit 25  00 

20                    N'aliM- uf  ntlifl- iiilcoMMUllialti"' ^t'jilili^'  'nitlit   as   tii-taili-d  ■)    m'f.j) 

ill  Splines  IV  iiliiici'. .  211;;  III 

I'Hil.lim;.  1  at  sill 40  00  It. '.Ml, 

line  11. 
Kstiti:ati-'l  \a1u<-  itf  |ii-<)vi>iiins,  atiiinuiiitinn,  ship  clinnd- 

Iny,  It"..  ii'iiiaiiiiiiK  nvir  at  iiiii  nf  mcliiiai'V  viiyaj,'i'  2IKI  (Ml 

K-tiiiiatiil  viiliir  lit'  ailiilis  ivliirii  wiri-  il.nilitliss  nil 
iHianl  vessrl,  liiit  wliii'li  caiiiiiit  )«•  s|k  ritiiiillv  mill- 
tiiiniil •.•(HMIO 

Oist.if  cluf.-iifi'uf  Sitka "lUO  0(1  l{.  STII. 

l'iissii({i'i)f  Capt.  .Miinrii otMK)  I!.  STII. 

80                        ilo         .luhii  .Marliiticli 42  00  It.  7l.\ 

.\liiiiiy  giviii  til  Imliaiis    1.5  00 

I'aiil  ('apt.  Wan-fii  in  niiiiiiiiinii  «iili  tliv  pn-i'iilalinii  It.  S71. 

i.f  till'  i-lailii  at  (lltawa  l."'-'  Ml 

liily.aV  uhaiUfi' 1,(KMI  (Kl                    It.  S7I. 

I'lOiiiialispfii-fi.   :<(r(i  (10                    H.  .S70. 

K\|Hnsr»  ami  liaiil.sliip- of  iii«.  -J ii  at  -a\  <><»>  lil.lHIII  IKI 

lAiiir  liiiii<liviUl<in>  at -x? '.'.SOO  (H) 

Italiiiu'i'  cif  catili  fill-  tliiii'iiiainili'iiif  tliiMaMiiiiif  lSS(i ; 
(iiiiir  <aiiiH~  fiiiiii   .\ii(,'iist     1st    til  I'liil  iif  iiiiintli) 
40  l,».'.ll«liillsat  .■<7 lil.llfj  (10 

Nit  value  iif  istiiiiatiil  coast  anil   Hiliriiit,'  Sra  cati'lii's 

fill-  till-  y.ai'  1H.S7.  7,IHi(l  (HI 

4.1.570  111 

I'  !■  illi'^fal  an-i'sl.  ilit'iitinii.  iiiipri»iiiiiiirnt  ami  nlliir 
liai.|>liip>  nf  Miinr.i,  iiia-lii  of  "  <  Inwaiil,"  anil  fin 
i'\|  iiisi'.s  iiii  iiiifil  ill  r'iii>ii|m'mi- iliiiii'f  ■    .         SI, mill  (Kl 

I'lir  illi'xal  aiTi'Ht,  ilitriitii  ii,  iiiipiisniiimiit  ami  utlirr 
liiiiiUliilw  iif  ■liiliM  Maiki'liili,  iiiatiiif  "OnHaiil," 
ami  fill'  I'xiHiisi  s  imnrii'il  in  lon-iipii'ini-  ilnn  .if.  I.imki  ml 

(.j>  Inti'ii'-t   .III    all  all.. v.-  ain.iiiiils  at   tli.'  lal.-  ..f  7  l"'!'  r.iil    \<iv 

""  aniiiiin  fiiiiii  ilatrnf  In.—  until  tin-  tilnv  nf  payimiit. 


US— 14 


>■■    1 


11 


P 

■  4 

■  \ 

i'   "i 

t 

m 

in 

■',1 

k 

F^ 


'mm 


1886. 

TIIK  "  FAVOURITE." 
Claim  No.  4. 


li.  I»i2, 
llii<'4l>. 


H.  l»i'.>. 


a.  i;«t', 

Mill' IK). 


K.  1304. 
iiii<':ti. 


Ap.  IV  isti.         The  "  Favourite  "  was  a   rogistorcd   British  schooner  of  80 
tons  gross. 

Towards  the  end  of  May,  1H8»!,  tlio  "  Favourite  "  sailed  from 
Victoria,  B.C.,  bound  on  a  sealing  voyage  to  tlie  North  Pacitic 
Ocean,  and  Behring  Soa,  fully  eiiuipiied  and  provisioned. 

Ifer  provision  hill  amounted  to  ?  1,1  (JO. 34,  and  the  slop  chest 
to  $255.01.  10 

Her  master,  Alexander  McLean,  was  instructed  hy  the 
owner  to  remain  in  Behring  Sea  as  long  as  the  weather  would 
permit. 

She  carried  a  crew  of  '26  men  ;  G  white,  and  20  Indians,  10 
canoes,  and  one  stern  boat. 

In  their  answer  to  the  claim  of  Ilcr  Britannic  Majesty,  the 

United  States  Government  admit  "that  on  or  about  August 

"  the  2nd,  1886,  at  a  distance  of  115  miles  from  the  nearest 

App  A.  i;<.     "land,  the    'Favourite'     was  hailed   by  the  United   States 

"  revenue  cutter  '  Corwin  '  and  warned  to  cease  scaling  in  20 
"  Behring  Sea  and  ordered  to  leave  Behring  Sea ;  and  that  the 
" '  Corvvin '  was  a  public  armed  vessel  of  the  United  States 
"acting  under  instructions  of  that  Government,  to  seize  all 
"  vessels  engaged  in  killing  fur  seal  in  l^ehring  Sea,  after  giving 
"due  notice;  and  that  the  'Favourite'  when  warned  and 
"  notitied  was  engaged  in  fur  sealing  or  prosecuting  a  voyage  for 
"  that  purpose,  and  that  the  action  of  the  said  '  Corwin  '  in  so 
"warning  and  notifying  the  said  '  Favourite'  was  ado[ited  by 
"the  Government  of  the  United  States." 

The  warning  took  place  about  two  o'cKx^k  A.M.  gg 

The  "Favourite"'  commenced  sealing  in  Behring  Sea  on 
July  the  !Hh,  and  at  the  date  of  the  warning,  she  had  2151 
seals  on  board,  5i)7  whereof  had  liecn  transferred  from  tlie 
"Onward." 

The  following  extract  is  taken  from  the  log  of  the  "  Fav- 
ourite" under  date  August  the  1st :  "  Midnight,  an  .American 
"steamer  spoke  us;  she  had  three  schooners  in  tow  and  gave 
"us  warning  from  sealing  in  Behring  Sea.  *  *  #  This 
"day  ends  with  tine  weather  and  light  north  wind.  Latitude, 
"55  17:  Longitude,  168  17'.  ^^ 

From  July  the  !(th,  when  the  "  Favourite"  commenced  seal- 
ing in  Behring  Sea  until  the  night  of  August  the  Ist,  when 
she  was  warned  as  above,  24  tla^'s,  she  remained  practically  in 
the  same  position  and  took  1817  simiIs,  an  average  of  75J  per 
day.  She  evidently  was  tempted  to  continue  sealing  on  the 
same  gn)und  on  the  2n(l  and  3rd  days  of  August,  and  her 

lOG 


|{.  l.fjr,. 


THE   FAVOUUITE. 


107 


catchcfl  for  these  two  days  were  118  and  142  rospeetivel}'. 
She  then  commciiced  to  change  ground  (no  doiiht  to  avoid  tlio 
cutters  and  save  tlie  large  catcli  she  liad  already  made,  and  the 
607  skins  she  had  of  the  "Onward,")  and  lowered  only 'wo 
days  afterwards,  viz. :  on  August  tlie  10tli,wlii>n  she  took  125, 
and  on  August  the  19th  in   the  Pas^,  where  she  took  ♦J2  seals. 

The  "Mary  Kllen  "  and  the  "  Vanderl>ilt "  were  scaling  in 
Hehring  Sea  in  188G;  the  former  untd  August  the  25th,  and 
the  latter  until  the  liOth  of  the  same  month;  the  last  lowering 
10  day  heing  the  29th. 

Tlio  "  Mary  Ellen  "  with  four  l)oatH  and  the  stern  boat, 
lowered  her  boats  after  August  the  3rd,  with  the  following 
result : — 

On  the  4th,  6  seals  ;  on  the  7th,  92  seals  ;  on  the  8th,  60 
seals;  on  the  9th,  82  sea's;  on  the  lltli,  18  seals;  on  the  loth, 
25  seals  ;  on  the  19th,  141  seals  ;  on  the  2l8t,  58  seals  ;  on  the 
23rd.  37  seals,  and  on  the  24th,  30  seals, 

Alex.  McLean,  examined  as  to  how  long  he  had  intended 
to  remain  sealing,  says  : — 

20      Q.  "  Was  it  your  intention  to  remain  sealing  for  as  long  aa  a.  y.m, 
the  sealing  would  be  good  ?  linor.i.' 

A.  "  Yes,  sir. 

Q.  "  And  as  long  as  there  would  be  seals  ? 

A.  "  Yes,  as  long  as  1  would  be  justified  in  sealing  there. 

Q.  "  And  you  had  enough  provisions  on  the  vessel  to  enable 
you  to  do  that  V 

A.  "  Yes,  I  believe  I  had. 

Q.  '*  And  you  couid  have  remained  until  the  Ist  of  Sep- 
tember ? 
30      A.  "  Yes,  sir,  if  the  weather  would  permit." 

It  being  shown  that  the  weather  permitted  his  remaining  at 
least  until  the  1st  of  September,  it  is  submitted  that  ller  Bri- 
tannic Majesty  is  entitled  to  claim  for  the  catch  from  August 
the  4th  to  September  the  1st,  28  days,  for  which  HoO  skins  in 
excess  of  the  187  taken  on  the  lOtii  and  19th  would  be  a  very 
low  estimate. 

As  in  other  ciises,  legal  and  other  expenses  were  incurred  in  u.  i.y, 
preparing  and  presenting  this  claim,  prior  to  the  appointment '""  '" 
of  this  commission. 


hi;' 


tv 


40      Her  Britannic   Majesty   claims  the   following   damages  as 
resulting  from  the  premises  : — 

Value  of  estimated  catch  as  above,800  skins 

at§7.00 §5,600  00 

Proportion  of  Capt.  Warren's  expenses  at 
Ottawa 152  00 

Belyoa'sbill 250  00 

Time  and  expenses  of  owner 200  00 

§6,202  00 

;")0      Interest  on  all  above  items  at  the  rate  of  7  per  cent  from 
date  of  loss  until  payment. 


.^m 


F 


TT^f^^^^WP 


1886. 


"THE  JJLACK  DIAMOND." 
Claim  No.  5. 

On  May  28th,  188(!,  iiistnictioiiB  were  itiaitcd  by  tlio  United 
Statcrt  TrcaBury  Depnrtment  to  the  Commanders  of  tin;  Revo- 
nne  Cutters  directing  tlietn  to  seize  all  vessels  aealini^  in  Behring 
Sea,  which  inatructiona  wore  carried  out  during  the  suninier 
of  that  year. 

In  further  pursuance  of  the  determination  of  the  United 
States  to  prevent  sealing  in  Behring  Sea,  the  following  letter  10 
was  written  from  tlieTrcasiiry  Department  on  the  6th  of  March, 
1886,  to  the  Collector  of  Cuatonjs  at  San  Franciaco  : — 

r.s  <«,  103.  "Sir  : — 1  tianamit  herewith,  for  your  information,  a  copy  of 
a  letter  addressed  by  the  department  on  the  I2th  March,  1881, 
to  D.  A.  D'Ancona,  concerning  the  Jurisdiction  of  the  United 
States  in  the  waters  of  the  Territory  of  Alaaka,  and  the  preven- 
tion of  the  killing  of  fur  seals  and  other  fur-bearing  animals 
within  such  areas,  as  prescribed  by  Chapter  3,  title  23,  of  the 
Eeviaed  Statutes.  The  attention  of  your  predecessor  in  oflice 
was  called  to  thia  subject  on  tlie  4th  April,  1881.  Thia  commu-  20 
nication  iaaddreaaed  to  you,  inasmuch  as  it  is  understood  that 
certain  parties  at  your  port  contemplate  the  fitting  out  of  ex[ie- 
ditions  to  kill  fur  seals  in  these  waters.  You  are  requested  to 
give  due  publicity  to  such  letter  in  order  that  such  partiea  may 
be  informed  of  the  construction  placed  by  thia  department  upon 
the  provision  of  law  referred  to." 

No  doubt  similar  letters  were  written  to  otiier  Collectors 
of  Customs  It  is  certain  that  knowledge  of  the  instructions 
was  imparted  to  the  Collector  of  Customs  at  Ounalaaka. 


Ap.  "II  • 

p.  :t7ii. 


K.  17.".ii, 
line  miM). 


I{.  17.V, 
line  .')5. 


I!,  ir.'is, 
liiii':<ii. 


|{.  175tl, 
linc!  MtH). 


n.  17."i7, 
inc  •Jl. 


The  achooner  "Black  Diamond"  was  a  British  ship  of  82  30 
tons,  registered  at  the  port  of  Victoria. 

In  1886  she  was  fitted  out  for  a  sealing  voyage  for  the  Nortli 
Pacific  Ocean  and  Behring  Sea.  She  carried  a  crew  of  4  white 
men  and  17  Indiana  and  had  \)  canoea. 

After  aealing  on  tlie  coast  in  the  spring  she  was  provisioned 
for  a  voyage  to  Behring  Sea.  In  taking  thoac  i)roviflion8,  it 
was  expected  that  the  vessel  would  not  return  until  the  begin- 
ning of  September,  and  a  sulRcient  outfit  for  that  period  was 
provided. 

She  atarted  for  Behring  Sea  about  the  lat  June  and  sealed  40 
on  the  way  ujt,  taking  64  .seals  in  that  part  of  tlie  voyage. 

She  arrived  at  Ounalaska  on  the  lat  of  July.  At  that  place 
the  Collector  of  Customs  served  certain  papers  on  the  master 
and  told  him  to  leave  Behring  Sea  right  away. 

The  representation  contained  in  the  papers,  as  understood  by 
the  master,  was  that  if  the  vessel  was  caught  in  Behring  Sea 
killing  seals  she  would  be  confiscated. 

108 


TIIR   BLACK    DIAMOND. 


109 


The  muster,  however,  proceeded  into  Itohring  Sea  and 
hegnn  sealing.  He  continued  until  about  the  3rd  or  4th  of 
August.  At  this  time  he  spoke  a  vessel  one  evening  and 
learned  from  her  that  two  or  throe  schooners  had  been  Moized. 
On  hearing  this  news  the  master  immediately  started  for 
home,  fearing  seizure  and  having  no  other  reason  for  leaving. 
lie  gives  the  following  evidence  on  this  point : — 

Q.  "  To  what  effect  were  the  papers  you  were  served  with 
hy  the  (^)llect()r  of  Customs  at  Ounalaska?  A.  "The  papers 
10  represented  that  if  the  vessel  was  caught  in  Behring  Sea 
killing  fursoals  she  would  he  confiscated. 

(J.  "  Was  tliero  any  verbal  notice  ?  A.  Yes,  I  was  strongly 
advised  by  the  ('ollector  of  Customs  to  go  out  of  Behring  Sea, 
or  I  would  be  sure  to  be  seized. 

Q.  •'  What  did  you  do  then  ?  A.I  went  out  into  the  sea 
and  began  sealing. 

Q.  "  I  low  long  did  you  remain  in  the  sea?  A.I  remained 
until  the  beginning  of  August. 

Q.  "  What  day?  A.  I  do  not  remember  what  day ;  it  was 
20  somewhere  between  the  Ist  and  the  3rd  and  4th. 

Q.  "  Did  you  meet  with  any  other  vessels  ?  A.  Yes,  I  spoke 
a  vessel  one  evening,  and  she  reported  that  two  or  three 
schooners  had  been  seized. 

Q.  "  What  vessel  was  it  you  spoke  ?  A.  That  I  do  not  re- 
member. I  am  under  the  impression  that  it  was  the  schooner 
'  Vanderbilt '  of  San  Francisco. 

Q.  "  Did  yo>i  know  what  were  the  vessels  that  were  seized  V 

A.  "  No  sir,  I  did  not. 

Q.  "  Were  you  told  ?  A.I  think  I  found  out  when  I  came 
30  back  to  the  west  coast. 

Q.  "  You  were  told  that  two  or  three  schooners  had  been 
seized?  A.  I  was  told  that  there  were  three  schooners  seen 
in  tow  of  tlie  cutter. 

Q.  "  What  time  of  the  day  was  it?     A.  In  the  evening. 

Q,.  "  What  iiction  did  you  take  then  ?  A.  I  started  for  home. 

Q.  "Why  did  you  start  for  home?  A.  I  was  afraid  of  a 
seizure. 

Q.  "  Had  you  an)'  other  reason  to  leave  the  Behring  Sea  ex- 
cept that  of  being  lifraid  of  being  seized  ?  A.  No,  sir,  I  had 
40  no  other  reason. 


I!.  i7.-.r. 

lini' :ilMHi. 


I!,  i;:.;. 

lull'  IK. 


At  the  time  of  leaving  he  had  taken  763  seals  in  the  sea.       i;.  17:17, 
After  leaving  Behring  Sea,  ho  lowered  boats  near  Shuniagin  '"'  !.'7' 

and  sealed  but  did  not  make  any  catch.     The  vessel  lost  the  iiu.  10. ' 

remainder  of  the  sealing  season   following   the  interruption 

above  referred  to. 

Legal  and  other  expenses  were  imnirred  in  preparing  and 

presenting  the  claim  prior  to  the  appointment  of  this  Commis- 

sion. 


Her  Britannic  Majesty  claims  the  following  damage  as  result. 
50  ing  from  tlie  premises : 

Estimated  catch  for  remainder  of  season  (9 
canoes    from    Aug.  4  to  after  Sept.  1,) 

1,491  skinsat$7... $   10,437  00 

Legal  and  other  expenses 250  00 


Interest  on  above  items  at  the  rate  of  7  per 
cent  from  date  of  loss  until  payment. 


$10,687  00 


■  -■  .m 

i'j'i 

t; :    :  'iS 
'  5'"  ill 


1887. 


A|>.  li.  Kill, 


u.  ii;f.'. 


I!.  llJCt. 


U.  ItT'.l. 


li. 

:i.s(i. 

li. 

mi'j 

li. 

ItPlH 

K. 

vm 

li. 

!I7!', 

hii 

■•2i. 

K.  inw, 

li.  llIKi, 
li.  llllMi. 


U.  Iii;i7. 


TIIK  "  W.  I'.  SAYWAUD." 
Claim  No.  »i. 

The  H'^istiT  ot  tliis  vossol  Hhowa  sho  wiis  built  in  1882,  at 
Vil'toriii.  Ilcr  length  was  (JS  t'oet,  i)rca(ltli,  21  feet  and  livo- 
tontlis;  ilejitli,  7  feet  and  two-tenths,  llcr  registered  tonnage 
was  (J4"ll  gross. 

Captain  Warren  testified  : — 81ie  was  built  in  1882  of  Douglas 
pine,  her  keel  being  hii(i  in  1881  and  tho  vessel  finished  in  the 
spring  of  1 882.  She  was  well  built  and  cost  about  $7,000,  hull,  10 
rigging,  Ac.  In  1887  she  had  depretiated  very  little  in  value  ; 
she  had  been  well  kept  uji ;  each  year  she  had  been  hauled  up, 
cleaned,  painted,  coppered,  bottom  painted,  to[>  and  sides 
painted  :  she  was  well  cared  for  right  along  from  1882  to  1887, 
and  had  a  new  suit  of  sails  in  188v),  on<>  new  sail  in  1887. 

Walker  saw  the  "  Sayward  "'  building.  Iler  carrying  capa- 
city was  110  tons  dead  weight.  In  her  construction  there  were 
used  natural  crooks,  Douglas  pine  and  she  was  trecnailed. 

McCollough  Smith  describes  the  building  of  the  "Sayward  " 
in  the  ship  yard  of  one  of  her  owners.     She  was  a  particularly  20 
strongand  well  built  vessel,  his  estimate  of  her  value  wa8!j7,600. 

Lewis  surveyed  tlie  "Sayward"  in  November,  1883,  found 
her  in  good  order  and  seaworthy ;  fastenings,  copper  below, 
iron  above. 

Walker  saw  hor  in  1887  after  being  built;  she  was  worth 
about  §8,000,  and  in  1880  was  worth  close  on  $7,000  ;  she  was 
well  taken  care  of,  and  there  was  very  little  depreciation. 

It  is  claimed  therefore  that  the  "  W.  V.  Sayward "  was 
worth  at  least  $7,000  when  i^eized  in  1887. 

She  left  for  Behring  Sesi  May  16th,  and  was  outfitted  for  a  30 
full  season,  to  stay  until  October  if  necessary.  She  carried  the 
British  flag.  She  had  8  canoes,  1  boat;  21  hands  all  told, 
principally  Indians.  Her  master  was  CKeorge  K.  Ferey,  and 
Andrew  D.  Laing  was  mate.  She  entered  the  Behring  Sea 
about  the  Ist  and  was  seized  on  the  0th  July  by  the  United 
States  cutter  "  Rush."  when  50  or  60  miles  from  the  Pribylov 
Islands. 

The  "  Sayward's"  coast  catch  for  1887  was  1 114  skins.  They 
wore  shipped  to  Victoria  before  she  entered  Behring  Sea. 

She  had  485  sealskins  on  board  at  the  time  of  her  seizure.    40 

The  cutter  towed  the  "  Sayward  "  to  Ounalaska,  and  after 
some  delay  the  skins  were  taken  out  of  the  "  Sayward,"  she 
was  towed  with  the  crew  on  board  into  the  Pacific,  by  the 
cutter;  a  cpiartcr-master  of  the  "Rush"  was  placed  on  her 
and  the  crew  was  ordered  by  the  captain  of  the  cutter  to  pro- 
ceed to  Sitka,  where  they  arrived  on  the  24th  July. 

The  United  States  Marshal  ordered  the  master  and  mate  of 
the  "  Sayward  "  to  go  up  to  court ;  they  were  then  bound 
over  to  appear  on  arrival  of  "  Rush,"  and  were  tried  in  Octo- 
ber, after  which  they  were  told  to  go  about  their  business.  50 

110 


80 


40 


50 


THB   W.    P.   8AYWARD. 


Ill 


Wliilo  waitiiijf  for  trial  t\w  mute-  jjot  Icavo  from  the  court 
to  go  to  Victoria  on  liiw  parolo  to  roturii  for  trial.  This  trip 
cost  the  mate  i^lOO. 

In  Sitka  the  iiuiHtur  and  mate  lived  in  tlie  jury  room,  Lning 
says  :  "  We  could  go  about  Sitka  no  loug  an  we  behaved  our- 
selves." 

The  vessel,  her  tackle,  apparel,  boats,  cargo  and  furniture, 
were  libelled  in  the  United  States  District  Court  at  Sitka  by 
the  United  States  Attorney. 
10  Iler  owner  appeared  by  counsel  and  after  trial,  the  property 
seized  was  on  the  19th  da}'  of  September,  1887,  condemned 
and  declared  forfeited  to  the  use  of  the  United  States. 

The  "Sayward"  was  in  May,  18H8,  obtained  by  her  owners 
after  giving  a  bond  conditione<l  for  an  appeal  to  be  taken  to 
the  Unite<l  States  Supreme  Court. 

The  "  Say  ward  "  was  used   for  coasting  during  the  months 

when  there  was  no  sealing,  and  if  she  had  not  been  seized,  or 

if  being  seized  she  had  been   returned  to  her  owners  would 

have  been  so  employed  during  the  fall  of  1H87  and  following 

20  winter. 

After  the  seizure  of  the  vessel  the  crew  were  turned  adrift 
at  Sitka,  and  suffered  great  hardship  in  returning  to  their 
homes, 

Her  Britaimic  Majesty  claims  the  following  damages  as 
resulting  from  the  premises: — 

VUt! 

Miiti'V  trip  til  Vicinna 

I'liiil  Attdiiii'V  lit  Sitkn 

l*;issiilf<' i(f  rr'i'W  .   I''>»l'l   Sinip^Mii  tn  \'ii't(ifi;l 

liilvill's  1  liiilV's      


II.  m>n. 
II.  llll.->. 

II.  |il!«t. 


.\|.|..  11.  rjs. 


if.  1 1 17. 


I!.  '."Mi. 
II  HI. 


80 


(  h\  iifv"--  iA|»n^f^ 

l*'\|"'iiHt'^  iiicui  i*i'<I  in  lioniliii)/  "Sayuaiil",  \i'.. 

llaniaKi'^  t'l  "i^ii.v  "'.'111    1  ^'i.v 

Insuiiiiiri- 

K\|ii'iisrs  and  liaiilsliips  iif  cii'W.  I'.l  nun  at  ."Till.li 
4sri  r>kinH  >>n  ioanl  al  tinii'  ><l  sii/.nn  ,  at  ■'<(i.'ill. 
Ii..(|(lin^ 


.\itii'lr>  on  l«iar.l  -lii|i,  iti'ni'  iniiHi«>ililc  li 
(nut  rc'tniiii'ih  


40 


Haliuii't'iif  catili  fill-  till'  ri'inainclir  cif  tlii'  sraMin  ;  linlit 
niiiiii«  and  1  l««it  frmn  -Inly  !l  t'lSiptimlx  r  l."i,  lHs7, 
2,'.ll'l  skin-,  at  ■•<(■.. fjll 


Kritiniati'd  riia.st  cati'li  fm-  IHHX,  1 
I.. 


*  I'XpCllHCW 


60 


.  til  ii«nir  liy  irasnii  nf  ilitiMiliim  in  1."W7  and  l.s,S.s, 
u  hiMi.  it  ill  iiwni'i'V  imssi-.s^inii.  >lii'  uuuld  Iiavi'  U-in 
riiastiiij,' NhwiiiIht,  Diri'inlni- and  .laiinaiy   

Ki)r  illftfal  anrst,  diti'iitiiin  iiM|ii'isiiiniii'nt  and  iitlii'V 
liardsliiph  (It  I  "aptain  Kn-i-N',  and  i-\[M'n^i's  iiu-niri'd 
in  fiinsi'iini'iu't*  tliri'titf   ... 

I''ii'  illi'^al  an'i'<t,  di-tinlinn,  ini|ii'ii-iinnii'nt  and  iitlii'i 
hai'dsliips  iif  .\.  I>.  Lainj;.  niali',  and  i'XIh'Ii.si'n  in- 
fui-rt-  '  ill  .-oiist-ipi(-ni'-  tlii'M-iit 


PJ  <KI 

IIKI  IMI 

r:ll  INI 

'JIN)  (N) 

r'lll  INI 

■JIHI  INI 

I.IINI  III) 

L'.INIII  on 

4SII  {Hi 

tl,.'illll  INI 

.'l.iriL'  ."-11 

4"  Oil 

Lim  IN) 

•.',4i;i  oil 

INK)  IK) 

I.IHHI  IKI 

4,INNI  INI 


I!,  ma 

li.    MINI. 

li.  iii:i. 

li.  iii.'i. 

li.  hi:!. 

li.  iii:i. 

II. "ill. 

II.  1117. 

.\i.p.  II.  ii'.i. 


Inl'-ri-st  nil  all  tlii'alKivi'  ainniints  at   tin-  rati-  nf  7 
ci-nt  iH-r  annum  fi-oin  dati  nf  loss  niitil  p.-iNnit-nt. 


*   47,!W4  !Ni 
p.i- 


Mi 


■■\M 

i 

iiiii 

1887. 


TIIK  'ANNA   r.lX'K." 

Claim  No.  7. 

Ap.  It.  ir.'.  The  rojrintor  <»t'  this  Htoiiin  scIiooiut  hIiowh  llmt  hIio  wns 
rojjirttcrod  at  Vicltniu.  Hritisli  <\iliiiiil)ia,  in  l^sl.  us  u  hitow 
stoiiincr.  She  was  ti;!  foot  and  7  ti'iiths  loii^';  'Ji!  loot  and  ii 
tenths  hroad  ;  5  t'eef  tU'ep  with  an  iiijiine  7  fct t  in  length. 
Siie  liad  an  nprijjlit  londensiiii;  engine  hnilt  in  IHHl,  regintered 
nine  liorse  pnwer. 

Her  registered  tonnage  was  4ri7  gross,  her   owner  was  10 
Junies  Douglas  Warren  at  the  (hito  oilier  registration. 

l{.  ii:n.  ('aptain  Warren,  says  : — 

l(.  li:u.  Tlie  "Anna  Heck"  was  l)ought  in  1872  for  $1,'  00.   In  1881 

au.xiliarv  steam  power  was  put  in;  slie  was  burned  to  tlie 
water's  edge  in  1883,  rebuilt  and  tlio  steam  power  replaced. 
She  was  kept  in  good  eondition  lietween  that  tinjo  and  1887, 
being  thoroughly  overhauled  onee  a  year.  Tliis  vessel  was 
built  of  Douglas  tir  with  oak  s'  rn  and  rudder  posts  ;  she  was 
iron  fastened,  and  had  a  stc  pump.  To  rebuild  her,  cost 
.r?5,0fl0,  and  the  engine,  whici.  .st  .s;5,000,  in  1881  was,  after  20 
being  repaired  put  in  lirst  class  order,  and  placed  in  her  again 

|{.  ii.u.  in  1883.     She  had  new  sails  in  1880,  which  cost  about  1^-100. 

It.  ii:t"..  She  could  carry  110    tons  dead   weight  and  had  carried  that 

amount  of  coal. 

I!.  iCi.  Cook,  who  worked   on  this   vessel,  says  she  was  kept  in 

good  repair  anil  was  in  good  comlition  in  1885  or  1880,  when 
he  last  saw  her.  He  gavijiisopiuion  that  she  would  cost  $135 
per  registered  ton,  sujipoaing  she  was  something  over  40  tons. 

I!. 'I".  Walker  kuiw  of  the  rebuilding  in  1883.     When  rebuilt  she 

I!-  !"7s.  liail   some  18    inches  to  2  feet   adtled   to  her  sides,   new  deck  30 

frames,  in  fact  she  was  built  from  the  water  up ;  as  far  as  her 
upper  works  were  concerned  she  was  practically  a  new  vessel. 
She  was  rebuilt  of  Douglas  tir.  The  condition  of  the  portion 
under  water  was  good;  he  considered  her  worth  in  188;{  when 
rebuilt  between  .^-1,000  to  •'^iSOOO.  Ik'twc^m  188;!  and  1887 
Walker  employeil  her  in  the  coal  trade  ;  she  w;<s  kept  in  good 
condition  ;  she  had  depreciated  very  liitle  and  would  be  wortli 
in  1887  from  .^7,.">(»0  to  ?<8.000. 

I!.  lo'M.  CJeoriie   W.  Cavin   rebuilt  her;    in   the  rebuilding  she  was 

cleaned.  All  the  burned  and  bad  wood  taken  away,  her  40 
staunchions  replaced,  and  everything  about  her  made  new,  so 
that  so  far  as  her  top  was  concerned  she  was  a  new  vessel.  She 
represented  then  $0,000  to  §7,000.  All  the  old  iron  fittings 
and  iron  work  aiiout  the  ship  wore  re|ilaced.  The  value  of  the 
"Anna  lieck"  Just  given  is  exclusive  of  her  machinery. 

112 


10 


50 


slu[i : 


TIIK    ANNA    IlKiK. 


iia 


,i'\vm 


Hiirvt'vi'il  till-  ■•  Anna  lU-i'k  "  in  |sst  fur  tlic  piir,  iisc  i;  imi 


1)1  iiisiii'Miii'i' aiiil  i'>'|Hii'U'il  till'  tliiit'<iiij;'|i  iivirliaiiliii^  tliiN  vi'HHcl 
liail  riToivdl  siiiiT  tlu>  tile. 


W 


aiiicr  valiii'il   tin 


witliciiii   lii'i'  oiillit  or 


iiiarliiiiiTv  at  liditi  s;>.(itiii  i,>  sc, uOO  wlu'ii  slic  wai  rclaiilt. 


Uii'lianI    r>i'iiii('lt,  xliiji  liiillilcr,  liclpt'il  t<>  rfl)iiil(l  licr ;  tlio 


wor 


k  ill 


>iii'  was  lirst  rlasH. 


II'  wax  iiiai 


I"  a  <l( 


'per  ai 


licit 


cr 


i;.  ni:w, 


vi'>si'l  tliaii  lufuri',      I'lxfliisivi'  ol  i'iij^iiu>,  macliiiitMy  ami  n-jiairrt 


II'  wa-  Will 


tl.  ?? 


10       Tlioinsiiii,  in 


li.    (HI, 


■Inr  111 


roiliu'cd  tho  ollu-ial  iii'n 


nlnl 


I!    'I'M. 


iiiMp  I'tiiiii  111' this  vc-^sil  niiiili'  ill  iss,"i,  fruni  wliidi  it  a|i|ic>an'i| 
llial  slii>  I'liiiiil  iiiako  )!  iiiii<'s  an  li'iiir  iiinlcr  strain  ainl  thai  litT 
iiiacliiiicrv  was  in  I'aiilv  mioij  in-.K  r ;  liot'X|iiaiiii'il  that  whili'tlio  |.  .i,,, 
r.^^i-icrcil  hiirsi'  puwcr  was  iiiiininai,  her  actual  hnrso  imwcr 
wouiil  he  alidiit  \b.  lie  valiicil  llichiiilcr,  \(',,  of  this  vi'ssi'l  at 
fiitin  *-,t!ii(l  111  !i5-J.T<tn. 

(irai'i,  I'liicf  ('iiixiiu'cr  < if  the  ,c;i)\  crniiioiit  stcaiiuT  "(iuailra,"  i:.  im 
ciindliiiral.'s  this  I'viclnn'c. 


if  hoik 


il 


'stiinateil  '>'  i"i' 


Amlruw  <iray,  iiispoctDr  ol  honors  ami  (Mihiiips,  ostiinateii 
1^0  #i',(10ttastheiost  of  piittinjr  llic  ciiiriiu'  ami  lidihw  in  the"  Anna 
IJi'ck,"  ht'siilos  the  mrcssarv  rarpoiitor  work. 

It  is  clainii'il  ilu'i'dorc  thai  the  vahic  nf  tho  "  Aiuiu  Heck'' 
when  scizoil  in  IMSi;  was  fully  iJS.UOO. 

The  vtwol  left  the  coast  about   tho  miiMlo   of  May,  1H87,  "  """ 
wifli    supplies  on  hoard   to    romaiii    in    ISehriiig  Sea  until   the 
heginniiiu;  ot   Septenihor.     She   was  tittoil   out  the  samo  way 
tluit  flho  was  in  ISSti ;  in  that  year  she  left  tho  soa  on  the  I'Jth 
Auirusf  anil  had  supplies  loft  at  the  end  ot  the  voyage. 

hi    l^^T   the  erew  ooiisistod  of  :2n  Iiulians  and  ti  w  Into  nion  : 
JHit  tliore  wore   10  eaiioes.     The  master's  name  was  liouis  Olson, 


tl 


o  m 


lite  Miihael  Keofe  ;  she  had  1 1  shot-guns  and  one  rille 


and  a  full  supply  of  ainumnition  for  tho  seastui :  the  Indians  had  i;  luu. 
spears  as  well  ;  she  lost  one  of  the  eanoos  in  Behring  Sea 
about  tho  :50th  .liino;  inioiuled  to  remain  nut  sealing  until  the 
oml  ot  August  ;  she  entered  the  sea  on  the  'JmIi  ,Iuno,  on  the 
80th  Olson  lowered  his  canoes  and  altorwards  ho  lowered  for 
a  day  and  a  half. 

When,  on  2nd  .Inly,    I'^'ST.   the    'Anna  iiook "  was  seized 


bv  the  eiittor  "  Iiu> 


the   Hriiish  lla^'  \\as  living  on   the 


40  sehoonor.  An  olHoor  oaiiio  on  board,  took  the  ship's  jiapers 
and  towed  her  to  Oi  nalaska,  one  otlioor  and  two  men  being 
plaootl  on  board  from  Mie  oiitter. 

Olsen  giving  evidenoe  says: — il   was  a  ealni  day;  smooth 


i;.  mi.; 


water. 


Tl 


loy    rernamo( 


1  4 


lavs  at   Ouiialaska,  when  th 


oaptain  ot  tin 


A 


una 


Beek 


as  ordered  to  go  on  biiar 


d  tl 


10 


seliooner  "Challenge,"  a  small  Amerioan  schooner  which  had 


)oon  so 


izod  :  the  mateand  full  crew  were  ordered  on  board  with 
him  by    Caiitain   Shepherd    of  the  "Rush."     On  this  small 
vossi'l,"  the  •'('lialleiige,"  llioie  was  a  full  crew    belonging  that 
SO  ship :    the  •'Challenge"   was    hauled    alongside   the    "Anna 

B  S — lo 


\ 


114 


THB   ANNA   UBCK. 


It.  1011. 


|{.  1041. 


App.  n.  i.-.i. 


App.  B.  1,M. 


Beck"  aiid  Bome  of  her  provisions  were  put  into  the  "Chal- 
lenge," by  order  of  Captain  Shepherd,  who  told  them  to  help 
themselves  and  take  what  was  necessary  on  hoard  that  ship ; 
no  provision  was  made  for  the  comfort  of  Captain  Olson,  for 
the  mate  or  men,  they  all  slept  on  tlie  cabin  Hoor  of  the 
"  Challenge."  Some  Indians  also  slept  in  the  cabin — 12  or 
14  men  slept  in  this  cabin.  The  cabin  was  about  \'2  feet  long, 
and  8  feet  broad.  There  were  tables  in  the  room.  The  floor 
was  very  small.  The  passage  to  Sitka  took  about  13  days. 
The  Indians  were  given  provisions  and  canoes  and  a  boat  3  10 
miles  from  Sitka,  where  they  started  for  Victoria,  a  voyage 
of  about  700  miles. 

A  quartermaster  named  Lawrence  had  charge  of  the  "Chal- 
lenge," from  Ounalaska  to  Sitka.  The  crew  of  the  "  Anna 
Beck"  remained  on  board  the  "Challenge,"  at  Sitka,  lor  two 
days  when  the  deputy  marshal  intbrmed  them  they  had  to 
appear  before  the  judge ;  they  were  bound  over  to  appear 
before  the  judge  and  sent  back  to  the  "  Kush  "  in  charge  of 
the  United  Stiites  Marshal  to  await  trial,  and  after  this  the 
nuister  and  mate  were  in  charge  of  the  marshal  and  slept  in  20 
the  jury  room.  They  slept  on  the  floor  in  their  own  blankets, 
and  remained  in  coniinement until  the  10th  or  12th  September; 
they  were  released  from  ini[)risonment  and  got  to  Victoria  about 
tiie'20th  September.  T.'ie  "  Anna  Beck  "  had  337  seals  when 
seized  ;  mostly  caught  on  the  voyage  to  Behring  Sea  outside 
tlie  sea.  The  ship,  her  tackle,  apparel,  boats,  cargo  and  furni- 
ture were  libelled  in  the  LInited  States  District  Court  at  Sitka 
by  the  United  States  District  Attorney. 

Her  owner  appeared  by  counsel  and  after  the  trial  the  pro- 
perty seized  was  on  the  11th  October,  1887,  condemned  and  30 
declared  forfeited  to  the  use  of  the  United  States. 


Tier  Britaimic  Majesty  claims  the  following  damages  as  result- 
ing from  the  premises  : 


li.    IIMll   I 

11.  nil. 


App.  II.  no. 


VmIu.'  of  \.  smI. 


I.Ul  I'f  siuris  nil  lid.iiil  till'  sclicKMirf  "  .Aiiiin  Hi  il;  "  «  lini 
-li/i'd,  sii  f:ii'  a-^  lln- iMplaiii  r.iii  n'cnlliit 


Sl..p  i-li,.>t 
1  liiiiUs 

Wnt.T   r-M.\i: 
•I   >lli.t  t;llM- 


<  illll  illipl<'ll)i-nt>  .-mil  tnnis    .  . 

Si'.-ilih^;  l.oiii  ami  .lUitit 

('.H.liiiii,'  ninp' 

ri')'Uiniiii  t>i  iu>iit':Mi<'(-  p.'iiij 
Wohiiui! 


K-'tiiiiatfd  \,'i1iii>iif  ai'tii'li's  wliii'li  wiTcddiilitli'ssnii  l>  ani 
lint  wliii'li  caiiiiiil  li'  spri'ilii'ally  iiii'iiliiini'il 


l'a--at;i'  I'f  nia.^li 
Ta^sMp-  tit  iiiativ 


.■<   S.dOII  (III 

PJ  11(1 

01 'ill  KO 

O.'l  (Ml 

Ion  on 

III  on 

|i;ii  00 

l.'i  00 

i|  OtI 

110  IHI 

7."i  on 

.'i7L'  L'-'^ 

W  oil 

'Jon  on 

.'ill  on 

,~iO  IHI 

('iiiiiiKrI  anil  111  III  I'  li'jtal  rvpi'iixis  In  aii'l  alimil  llir  claiiiis 
arising' imt  lit  till' .-^lizuii' 

I'lis. iiiiil  (••.piiiM'~  ill   I'liiiniTii.iii  witli  ^lu•||  .sriziiii'  ami 
I'laiiiis 


r.n  no 


40 


50 


n 


10 


TUB   ANNA    liKCK. 

«  la.lKKI  (M) 

Kvpillsrs  ;it  Sitkll    ..     . 

|M,I   III) 

:W7  skins  at  ifllM  incli 

'.',l!l(P   "lO 

.Inly  •Jn.l  t„  ,S,.,,t.  i:.,l,.  ISS7,  ;Mxk.  .ki„,  „1  >,,{Z     '  ,,,.„,,  „„ 

l»nM.,,m.„nv,|,„n,ns,.,„„.,„.,.,l„. f .\  ,,„„„„„ 

l>itt..as,„K,.,.f.,,,„a„.„f,|„-A„„an,.,.k" .,. ,„„ 

"i  I, III  III  IIS 

Inlrivsi   ,,,1  ,,11  tl„.  mLov,.  ,i,ii,,mi(s  Ml   th,-  nil,-  ,,f  7  ,„.| 
c'lii  !„.,■  aiiiiuiii  fn,i„  ,lat,,  ,,f  !,,>>  iiinil  |,,iyiiMMit. 


115 


I 


lil'L 


1 1  iS 


18^7. 


K.  lH.v.t. 
liiii'  lili. 


It. 

i.'<i;ii 

Ill) 

■  ."iS. 

li. 

l.tii.{ 

lin 

•  nil. 

H. 

i:<r.i 

Ill) 

•  :<:t. 

I!.  IHiill. 
liiif  L'l). 


'I'lIK  "ALFRED  ADAMS." 
Claim  Xo.  S. 

Till'  "  AllVod  Adiinis"  was  a  Jiritisli  schooner  of  (i!t  tuiiH, 
registered  ut  tin-  port  of  A'ictoriii. 

In  the  year  1887,  «ho  litted  out  for  a  sealing  voyage  to 
Behring  Sea. 

Her  crew  consiHled  of  four  white  men,  one  ChiiiaTnan  and 
21  Indians. 

She  entered  the  sea  on  stli  or  Htli  July  and  continued  seal- 10 
ing  until  the  6th  day  ot  August.  On  that  day,  her  position 
heing  latitude  54'.")2  X.  and  longitude  KlT'iiO  \V.,  she  was 
boarded  by  an  oHieer  from  the  revenue"  eiittoi'  "  Rush,"  wiiieli 
cutterhad  steamed  alongside  and  lowered  a  boat,  eontaining  a 
crew  commanded  by  the  first  lieutenant. 

In  the  declaration  of  William  Henry  Dyer  (since  dead), 
who  was  master  ol  the  scliooner,  taken  at  Victoria  on  the  Ist 
September,  1887,  and  which  was  admitted  in  evidence,  it  is 
said : — 

"  The  said  lieutenant  came  on  board  the  said  '  Alfred  20 
Adams'  and  ordered  me  to  take  the  ship's  register,  log-book, 
articles  and  all  others  of  the  shiii's  pajiers  on  board  the 
'Richard  Rush.'  In  obedience  to  his  command  I  took  all 
said  palmers  and  accompanied  the  said  lieutenant  on  hoard  the 
'Richard  Rush.'  Wheii  I  arrived  on  board  the  '  IJush  '  the 
ca))tain  of  the  '  liush '  asked  me  what  was  my  business  in  the 
Behring  Sea.  1  replied  taking  si'als.  He  in([uired  how  nniny 
seals  I  had.  I  replied,  l:3si5.  lie  then  said  he  would  seize  the 
ship,  take  the  skins,  arms,  ammunition  and  ^pears.  I  stated  I 
did  not  think  the  shi]i  was  liiible  to  seizure,  a.s  we  had  never  30 
taken  a  seal  within  (10  miles  ut'  ( )unalaska.  nor  1:  irer  St. 
i'aul's  Island  than  tiO  miles  south  of  it,  and  that  we  had  never 
been  notified  that  the  waters  were  jirohibiled.  unless  landing 
and  taking  them  from  the  island  of  St.  Paul.  He  stateil  he 
must  obey  the  nrders  ol' his  government  and  that  our  gov- 
ernment an  1  his  must  settle  the  matter.  an<l  ordered  me  to 
proceed  on  )oard  the  said  schooner,  and  deliver  my  arms, 
ammunition  and  skins  and  spears,  lie  smf  two  boats  bo- 
longing  to  the  'Rush  "  in  charge  of  the  lirst  and  second  lieut- 
enants of  the  'Rush'  resp''ctively,  and  maimed  with  sailors  40 
from  the  '  Rush  '  who  came  on  board  the  said  schooner.  (I  re- 
turning in  company  with  the  lirst  lieutenant.)  They  took 
from  the  said  schooner  1386  skins,  4  kegs  of  powder  (3 
trijile  I'"  and  blasting  jiowder),  i')()0  shells,  ;i  cases  caps  and 
primers,  !)  bri'ech-loading  double-barrelled  shot  guns,  1  Win- 
chester ritle,  all  in  good  order,  and  1-  Indian  spears,  and  he 
then  gave  me  a  sealed  letter  addressed  to  the  rnited  States 
Marshal  ami  the  Uinted  States  District  Attorney  at  Sitka,  he 
also  gave  me  an  acknowledgment  of  the  goods  taken,  and  also 
gave  me  a  certiticate  that  the  said  schooner  was  under  50 
seizure;  and  after  being  alongside  for  about  three  and  u-half 

116 


10. 


THE   ALl'KErj    ADAM;*. 


117 


hours  I  roeeivc'il  onlers  in  wrlt'mi^  to  procoLMl  to  Sitka  and 
report  to  tlio  ITnitod  States  District  Attorney  aiul  Marshal  ; 
we  then  parted  eoni|iany.'" 

Previonsly  to  being  seized,  tlie  "Alfred  Adams"  had  spoken 
the  schooner  "  Kate  "  of  Victoria  and  liad  been  informed  by  the 
mate  of  that  vessel  that  the  crews,  and  particularly  the  Indians, 
taken  to  Sitka  on  schooners  previously  seized,  had  been  very 
badly  treated.  The  liidians  on  l)oard  the  "Alfred  Adams" 
became  very   nmtiiions  on  li>ari)ing  that  they  were  ordered  to 

1"  Sitka  and  dei'lared  they  would  not  go,  and  to  avoid  further 
trouble  the  imister  came  to  Victoriii  instead,  arriving  thereon 
the  olst,  August,  1887,  at  al)out  7  p.m. 

This  statement  is  corroborated  by  the  joint  declaration  of 
William  Thompson,  mate,  and  Charles  Petersen  and  Pidward 
Hodgson,  seamen  (all  of  whom  have  since  died)  taken  at  Vic- 
toria on  the  1st  September,  18"'7,  which  was  also  received  in 
evidence. 

The  certiticate  referred  to  in  the  declaration  of  the  master 
is  dated  August  6th,  1887,  signed  by  L.  G.  Shepard,  Captain 

20  United  States  Marine,  and  is  in  the  following  words  : — 

"This  will  certify  that  I  have  this  day  seized  the  British 
"schooner  'Alfred  Adams,'  of  Victoria,  British  Cohuid)ia, 
"Capt.  W.  II.  Dyer,  master,  for  violation  of  law  and  have 
"  taken  charge  of  his  shiji's  paiiers,  viz. :  regiater,  shipping 
"  articles,  clearance,  bill  of  health  and  log-book,  also  her  arms 
"and  seal  skins." 

The  report  of  Capt.  Shejiard  to  the  Secretary  of  the  Treasury 

at  Washington,  detailing  the  circumstances  of  the  seizure  as 

al)ove,  was  also    put  in    evidence.     In    this  report    he   says: 

80  "  When  boarded  she  {i.e.,  the  schooner)  had  fourteen  <lead  seals 

"recently  killed  but  not  skinned  on  deck." 

It  also  appears  from  an  extract  from  the  log  of  the  "  Hush," 
dated  August  •!,  1S87,  that  the  articles  found  on  hoard  the  ship 
and  transferred  to  the  "Rush"  were  the  following:  IHS^seal 
skins.  7  double-barrelled  15.  L.  shot  guns,  o  15.  fj.  AVinchester 
rifles,  2  single-barrelled  muskets,  HA  kegs  of  [lowder,  2r)9  loadi'd 
shells  for  shot  guns,  190  empty  shells,  110  .artridges  (44  for 
Winchester  rifles),  70  cartridges,  45  .small  cartridges  and  1500 
primers,  and  that  the  vessel  was  seized  for  violation  ot  Sections 
40  1955  and  lll5ti.  Revised  Statutes,  and  Executive  Order,  dated 
May  4th,  18h7. 

It  appears  also  from  ii  further  extract  from  the  log  of  the 
same  cutter,  dated  Augtist  12lli,that  certain  Indian  spears  and 
187!t  seal  skins  taken  from  the  "  Alfred  Adams  "  on  the  6th 
August,  were  delivered  at  Oiinalaska  to  the  United  States 
Marshal. 

Legal  and  other  expenses  were  incurred  in  preparing  and 
presenting  this  claim  prior  to  the  aiipointmcnt  of  this  Commis- 
sion. 


I!.  i;ii!ii, 


I!.  l.'iCC, 
Mill-  ."ill, 


It.  \M\:\, 

line  Till. 


lillr   IS. 


i{.  i;iiii, 

Iini':i0. 


Hi 


118 


TUB   ALFRED   ADAMS. 


Her  Britannic  Majesty  daiins  the   I'ollowiiig   claniagein   as 
resulting  from  the  premises  : — 


For  the  illegal  boarding,  search  and  arrest 
of  vessel 

Ship's  papers 

7  double-barrelled  shot  guns  at  $55 

2  single-barrelled  muskevs  at  §10. 

1  Winchester  riHe 

12  Indian  spears  at  $3  each 

1,380  seals  skins  at  $0.50 

Legal  expenses 

Personal  do      

Estimated  catch  for  remainder  of  season,  10 
canoes  sealing  from  (!th  Aug.  to  1st  Sept., 
1344  skins  at  $6.50 


$2,000  00 

25  00 

385  00 

20  00 

35  00 

36  00 

!),oon  00 

300  00 
200  00 


8,736  00 


10 


$20,716  00 


Interest  on  all  of  the  above  items  at  the  rate 
of  7  [)er  cent  from  date  of  loss  until  pay- 
ment 


JKii 


li.  111. 


i(i:tri. 


1887. 

TIIK  "GRACE"  AND  "DOLPHIN." 

Claims  Nos.  9  and  10. 

The  register  shows  tliat  the  steam  schooner  "Grace"  was  .\i'.  !5.  ini. 
built  in  1881  at  Victoria.     Her  registered  tomiane  was  83'01 
gross.     Slie  was  76  feet  d-tenths  long,  23  feet  and  4-tenth.s 
broad  and  8  feet  deep  in  the  hold  from  the  tonnage  deck  to 
ceiling  at  midships. 

She  was  registered  in  tlie  name  of  James  Douglas  Warren. 
10      The  "  Dolphin  "  is  shown  to  have  been  built  in  1882,  with  a  M<- 
regiHtered  tonnage  of  06*24  gross.     She  was  77  feet  long  and 
22  feet  7-tenthsbro-.id,  7  test  5-tentlis  deep  in  hold  from  tonnage 
deck  to  ceiling  at  midships,  with  an  engine  room  10  feet  in 
length. 

She  was  registered  in  the  name  of  James  Douglas  Warren. 

Captain  Warren  says:  Of  these  vessels  the  "Grace"  was  It. 
the  larger;  they  were  built  about  the  same  time,  one  after  the 
other.  The  "Grace"  was  built  of  Douglas  fir  and  yellow 
cedar,  with  oak  stern  and  rudder  posts ;  copper  fastenings  : 
20  she  was  treenailed  throughout;  copper  from  just  above  high 
water  mark  down  ;  galvanized  iron  above  that.  Co!*t  ??10,000 
with  her  engines  complete.  She  had  a  passenger  certificate, 
and  steam  hoisting  gear ;  kept  in  thorough  rejiair,  and  was 
in  good  condition  in  1887. 

The  "  Dolphin  "  was  built  immediately  after  the  "Grace." 
She  was  a  better  boat;  more  care  taken  in  the  selection  of  the 
material  and  fastenings  ;  the  style  of  the  ship  was  pretty  much 
the  same;  the  co.it  about  the  same  as  the  "Grace"  ;  kept  in 
good  condition  and  was  so  in  1887. 
30  Mr.  Walker  saw  these  vessels  during  construction  ;  describes  if. 
the  material;  valued  the  "Grace"  in  1887  in  the  neighbour- 
hood of  $12,000 

In  1887,  before  the  "Dolphin  "  went  sealing,  he  employed 
her  to  carry  coal ;  she  was  in  good  condition  and  was  worth 
from  §13,000  to  §14,000  in  1887. 

McC.  Smith  had  to  do  with  the  building  of  the  "Dolphin."  If. 
He   de.'^cribes  the  care  taken   in   the  building   and    material  "• 
used  ;  built  by  days'  work  ;  copi)ercd,  natural  crooks  of  yellow 
cedar;  valued  her  at  §9,700  exclusive  of  machinery. 
40      He   was   also   concerned    with   building   of  the   "Grace."  li. 
She   was  latger  than  the  "  Dolphin  "  though  not  so  good  a  'f 
vessel  ;  values  her  at  §10,000  clear  of  nuu-hincry,  and  exclu- 
sive of  carpenter  work  in  connection  with  putting  machinery 
in. 

The  "  Dolphin  "  was  a  very  strongly  built  siiip — one  of  tlje  " 
best  of  the  sealing  fieet. 

Ill) 


!irs. 
'.irii. 


Km  IS. 
IIKKI. 


mill. 

Hill 


iiii:t. 


I    V 


'■fk 


5'' 


120 


THE    OKACE    AND    DIILPIIIN. 


I!.  iMl.-i. 


If.  Idl'M. 
I!,  vm. 


i;.  !i!ti;. 


11.  KHM. 


Mr.  Warner  (.•orroboratea  the  ovideiur  ol  Mr.  Siiiitli  as  to 
the  "({race"  and  "  DLlpliiu." 

George  W.  Cuvin  helped  to  build  those  vessel.-* ;  valiie<l  hull, 
spars,  &e.,  of  "Dolphhr'at  §14,000,  in  tlie  case  of  the 
"Grace"  at  §12,000. 

Richard  Hoimett  worked  on  the  "  Dolphin  "  and  "Grace  "  ; 
Til'  "Grace"  cost  between  $1-',0<I0  and  §l:!,0(tO,  covering 
rigging,  sails,  anchors,  hull  and  spars.  The  "  Dolphin  "  cost 
§2,000  more. 

Mr.  Thomson  i>roduced  the  I'ccord  ot  the  inspection  of  the  10 
"  (irace,"  March,    ISS;"),  showing  she  could    make  o  miles  an 
hour    under   steam;    good    sca-worthv    (pinlities,  fairly    good 
engine,  good  tost  ot  boiler,  actmil  horso  jiower  25;  valued  the 
engine  and  boiler  in  ISS,")  at  §:3,50O. 

lie  produced  also  the  record  of  inspection  ot  the  "  l)oli)hin  " 
November,  l8.Su  :  under  steam  she  could  make  4  nnles  an 
hour  speed.  A  good  boiler  one  year  old,  and  engine;  dupli- 
cate of  the  "  (trace's.'' 

.\[r.  Gray   put  the  cost  of  the  boilers  and  engines  of  the 
"Grace"  and  "  Dolphin  ■■  at  §3,1  i't»  to  $:!,200   including  the  20 
cost  of  putting  thom  in. 

It  is  claimed  therefore  that  nndoi  the  circumstances  the 
value  of  these  vessels  when  seized  was  in  the  case  of  the 
"Grace  "  §12,000,  and  in  that  of  the  "  Dolphin  "  §13,000. 


The  "  Grace"  littod  out  tor  a  lull  Uebring  Sea  voyage,  to  .stay 
until  October,  if  iioccs-ary,  and  on  .May  2l3t  sailed  from 
Olayquot  bound  north.  W.  Petit  was  master  and  II.  Xorinan 
was  nniti'.  She  carried  12  canoes  and  one  boat.  Ilor  crew 
consisted  of  <)  while  men,  24  Indians,  and  a  Gbinoso  cook. 
It.  IM'^  On  .Inly  l7th,  l.'>s7,  she  was  soi;',ed  by  otlicors  ot  tlio  cutter  30 

"Rush"  at  a  distance  of  about  '.'ti  miles  from  the  nearest  land 
and  with  her  crow  taken  in  tow  to  Onnalaska. 

On  July  l.Sth,  18s7,thc  comnuindorof  the  "  Hush  "  repcu'tod 
to  the  United  Slates  .Secretary  of  the  Troasui'y,  the  seizure 
of  the  steam  schooner  '•<!race,"  as  follows  : — 

"On  Jidy  17tb,  in  tin'  Ik'bring  Soa,  hit.  •');')  duM-  08'  X  long. 
1(!8  ileg.  40'  W.  Capo  C'hoort'nI.  Oninilaska  Island  bearing 
S.  K.  i  K.  OU  nnles  distant,  I  boardcil  ami  examined  the  British 
steam  schooner  '(irace"  7t>i^,.  tons  register,  of  Victoria,  \i. 
C,  \Vm.  IVtit.  master,  and  •!.  D  Warren,  of  Victoria,  H.O.,  40 
managing  owner,  and  found  Inr  to  be  on  a  scaling  voyage. 
Had  been  ton  days  in  the  Hehring  Sea.  and  had  7li!i  seal  skins 
onboard.  When  boardeil  she  had  iwehc  eanoos  and  one 
boat  out  hunting  seal.  Saw  one  seal  shot  and  taken  into  the 
hnat  while  we  wore  near  her.  Counted  rJsoalslaken  on  lioard 
the  schooner  IVom  one  canoe  and  all  the  eanoos  contained  more 
or  lc.<s  seal  rcicntly  killeil.  Tbo  captain  reported  taking  00 
during  the  day  and  l.')0  the  day  pievious.  Seized  the  vessel 
tor  violation  ot'  section  .'.lod  l>..s..  ;ind  two  breech  loading 
rilles  and  ammunition  f  n  same,  for  siolation  ol  section  llt.ji"),  50 
U.S.,  and  section  4,  l',.\ccntivo  order  .\'<i.  .");i,  dated  May  4,  1887. 
Her  crew  consisted  of  si.\  white  men,  twenty-four  Indians  and 
one  Chinaman.  I'laccd  liieulenani  {{cnbani  in  charge,  and  after 
waiting  seven  bonis  for  her  canoes  to  return,  some  ot   which 


,  if 


Tin;    liKACE    AND   DOLPHIN. 


121 


ii.  IH.'t. 
II.  IKK 


liiid  licrii  a  l(um'  ilislaiicc  iVom  llic  vossd,  t.iok  licr  in  tow  itml 
l»rnccc(li(l  to  Oiiiiiilaskii.'' 

Tho    inastiT  was  iiiadi'   prirtoncr  and   taken  on   l)oard  tlio  '>'  "-''• 
"  Riiah.  " 

The  "  Graoo"  carried  tlic  IJriiisli  tlatj. 

On  July  18th,  at  Oninila^^ka,  all  lii'oai'ins  and  ainmtiiiition 
were  taken  from  the  "  Ci-ace"  hy  tlie  otHcers  ot'the  cutter  and 
arnmircnu'iits  were  ina(h'  to  send  lier  to  Sitka. 

On  finly  19tli  tiie  cutter's  crew  took  oft' 7ii!t  sealskins  ami  4  i;.  nti;anri 
lU  sacks  of  salt  from  the  "  (^race.  "  ""'^""'  "'•"'■ 

C)n  July  2()th  the  ••  (irace  "  was  taken  to  Sitka  in  charji-e  of 
a  I'liitcd  States  Marshal. 

On  his  arrival,  August  1st,  the  master  was  handed  over  to  i;.  n:;;. 
the  custody  of  tlie  United  States  Marshal. 

No  one  liad  particular  charL'^e  of  the  provisions  after  arrest :  |>  1 1  m 
the  men  heliiini;  themselves  generally,  auil  the  United  States 
.Marshal  himself  also  took  certain  articles  from  the  scliooner. 

The  .Marshal,  on   .\ugiist  7th,  ordered  the  Indians  to  leave  u.  iin;. 
the  schooner,  and  they  went  on   shore;  on    August   8th  they 
20  were  ordered  hack  on  the  schooner. 

On  October  tho  4th  the  "  J\ush  "  arrived  at  Victoria  with  l!.  iiir. 
some  of  the  Indians  and  a  number  of  the  white  men ;  the  master 
and  mate  who   had  been  under  arrest  were  released  on  Sep- 
tember IHh. 

The  "  Grace,  "  her  tackle,  apparel,  boats,  cargo  and  furniture 
were  libelled  in  the  United  States  District  Court   at  Sitka  by 
the  United  States  District   Attorney  on  the  13th  September,  Ai.p.  r...  i:;*. 
1887. 

Iler  owner  appeared  by  counsel  and  after  trial  the  property 
30  seized  was  on  the  11th  day  of  October,  lsS7,  condemned  and 
declared  forfeited  to  the  use  of  the  I'nited  States. 

"  UOLPIIIN." 


■'  :t: 


lill 


i  tM 


The   "Dolphin"  left  Victoria  on   May    16th,   1887,  after  i;.  nci. 
having  littcd  out  for  a  full  season's  voyage  in    liehriiig  Sea —  i;.  ii;m. 
till  October  if  necessary  ;  Warren,  master  ;  Uoily,  mate  ;  lier 
crew  and  hunters  consisted  of  7  white  men,  (1  white  hunter), 
and  2t3  Indians ;  1:5  canoes,  1  boat. 

She  carried  the  British  Hag.  "•  "i.". 

On  the  l-:th  July  the  United  States  cutter  "  Rush  "   seized 

40  the  "  Dolphin  "    at   a   distance  of  about   40  miles  from   the 

nearest  land,   took   her  arms  and   auinmnition  ;  put  an  ofHcer 

and  two  men  on  board  in   cliarge  of  her,  and  ordered  her  to 

Ounalaska. 

On  July  18th,  1887,  the  commander  of  the  "  Rush  "  reported 
to  the  United  States  Secretary  of  tlie  Treasury  the  seizure  of 
the  steamer  schooner  "  Dolphin.  "  as  follows  : — 

"  Found  her  to  be   on  a  sealing  voyage.     The  vessel  had 

been  three  days  in  the  Hehriug  Sea  and  had  618  seal  skins  on 

board.     Ten  canoes  and  one  boat  were  out  hunting  seals  at 

jO  the  time.     From  the  canoes  12  or  more  dead  seals  were  taken 

li  s — 16 


11 


IP 


rannBBW 


'!^^ 


122 


TUB   URAOE   AND   DOLPHIN. 


on  board  the  acliooiier  while  wo  were  near  her,  and  tlireo  skins 
I'roni  seal  rocoiuly  l^illed  were  found  in  the  boat. 

"  Seized  the  vessel  for  violation  of  section  19r)6,  l{.  S.,  and 
transferred  her  arms  and  aninninition  on  board  the  *'  Kuali " 
viz. :  4  brooch-loading  ritles,  2(i  brooch-loading  sliot-guns,  10 
nnizzle-loading  shot-guns,  1  bomb  gun,  4  revolvers,  ;^404 
rounds  uTumunition  for  breech-loading  ritles,  250  rounds 
ammunition  for  shot-guns,  4  kogs  powder,  50  lbs.  shot,  and 
other  small  ammunition." 

On  the  l;5tli  July  the  United  States  authorities  at  Ounalaska  10 
took  1(18  seal  skins  and  fl  sacks  of  salt  from  the  "Dolphin." 

|{.  iii">.  She  was  then  sent  to  Sitka  in  charge  of  an  otHcer  and  arrived 
there  on  the  yist  .luly. 

With  the  knowledge  and  consent  of  the  United  States 
ofHoer  in  charge,  and  while  tho  vessel  vas  on  hor  way  to  Sitka, 
four  of  the  crow  left  in  one  of  the  •'  Dolphin's"  boats  for  Fort 
Simpson. 

K.  11  Hi.  The  marshal,  on  August  7th,  ordered  the  Indians  to  leave 

the  schooner ;  they  went  ashore ;  they  were  ordered  back  on 
the  vessel  on  August  8th.  20 

1!.  1117.  Tho  master  and  mate  having  been  under  arrest  were  released 

on  September  9th. 

The  "  Dolphin,"  her  tackel,  apparel,  boats,  cargo  and  furni- 
ture were  libelled  in  the  United  States  District  Court  at  Sitka 
by  the  United  States  District  Attorney  on  the  13th  September 
1887. 

Api).  r..  i(!ii.  Her  owner  appeared  by  counsel,  and  after  trial,  the  property 
seized  was  on  the  11th  day  of  October,  1887,  condenuied  and 
declared  forfeited  to  the  use  or  the  United  States. 

Her   Britannic  Majesty  claims  tho  following  dainages  as  go 
resulting  from  tho  premises. 

In  the  case  of  the  steam  schooner  "tirace" : 


I!.  ii:tip 


\i.|i.  r..  iL'ii. 


Viilni'  iif  M'ssi'l 

s|:.>.(KHi  no 

I'laK 

y>oo 

....                      W)  on 

IL'  wiiti'i-  (•••isks 

;«t  (10 

I'J  IfUlls 

ISO  00 

.■ti-iH- ... 

.....       .  .             77  :")« 

CalilUMl               

.'lO  (HI 

(  lllTl   ttiiils        

11    (HI 

•Jl„,„l^         

2."ill  111! 

ClLlli    ,S|.1\C         

7.""  (H» 

In^MV.-iiici' 

.•<4S  7."i 

l'..■a.lin^; 

ad  00 

I'Ntiiii.'iti'il  v^iliii' iif  arlicli'H  wliii.'li  wci'i' ilniilitli'^s  ini  IhkmiI  tiji 
vi'^^il  liiit  wliicli  riiiiiiiit  lir  s|»vilir:illy  iiii'iiti>iii<"l    

lv\|irii>i-s  anil  liai-tNliip.s  ttf  rtfw  "f  Xi  riirn  at.  ."S'HHI  each 

I'a.-siKi'  iif  nia>li'i'  anil  uii'W 

l.c'Kal  f\pi'ni-c's 

Tiini'  anil  pi-r^niial  i'.\|.i'nsi's 


■-'."ill  IKI 

|l'i,.'Klil  III) 

^IKI  III) 

S,'i(l  IHI 

iTill  (1(1 


40 


;  I 


10 


20 


30 


40 


TUB   ORACB   AND   OUI.FillN. 


128 


Tlili  ~kiii>.  at  Sli  .Ml  cai'li 


x     I.H'.W  (Ml 


liiilttnci'  III'  >nli'li  Inr  ilii'  I'i'iiMiiiili'i'  III'  llii'  siaM'ii,  IL'  (.1 >,  I 

lmat,.liil.v  ITlli  liiSijiirnilii  r  ITiih,  1S87.  li.miil  akiii-.il  sri.riti    1!I,."kki  ihi 

I'm' illi  K'al  airi'st,  ili'ti'iitiiiii  anil  ntlii  r  liaiilsli{|is  ul'  Cajilaiii 
I'llit  of  till'  "(iraci'"  Hill  cxiicnscs  iii,uiifil  in  immc 
(|nino'  llnniif I.IHHMMI 

Kill' illi';;al  arri'^t,  ili'li'iilliin  ami  utiiir  liari|slii|i»  nl'  inati'  uf 

"tiraci'"  anil  I'xiH'iHi's  inrnrri'il  in  cini-'riiiii'nci'  iliiii'iif         I.ikki  iki 

Nil.  Ills  ■_>:, 

liili'i'i'Nt  nil  all  Ilir  aliiiM' ili'm-*  at  llii'  ratr  ul  7  |»'i' nnl  |iit 
aniiiiin  finiii  itii*  ilati'  nf  t<>>s  until  jiavnu'iil. 

Ill  the  caao  of  tlic  steuin  scliooiior  "  Dolphin  "  : 

\'alni' nf  vr.ssi'l .'<!  I.IIIHI  IMI 


l-'lfttr 

.'Vnininnitiiiti,  i-Ntra      . 

Slijp  client 

Iriiii  tmiki 

Casks 

•Jli  Kiiiis  at  syi  iMili 

Id  iniiz/.li'  liiailini;  ^'iiii-  at  s:.'li. 

■1  rillrsat  sr.'L'.MI  larli     

4  rcvohiis  at  !<W. ...    

ISiHiiii  gun 

TikiIm 

Boot 

C(iokiii(?  stovi' 

Ili-ililiiit; 

Insiiraiicv 


Kstiniafril  valui'  i>f  ailii'lrs  wliicli  wcii'  ilmilitlrss  im  Uiard  Imt 
wliii'h  I'aiinnt  Iir  siirciliually  Mirntinni'il    

I'A|»'iisi's  ami  liai'ilslii|i»  uf  rifw  nf  It;!  nii'ii  at  sTilHI  rarli. 

{'assail' uf  niasli'i- .mil  c'li'W     ..    

Lrgal  f.xpi'iisi's    ,  

TiiiH'  ami  i>t*rsiinal  i'\|M'iist.s 

t'.IS  skins  at  .?!>. Till 


12  IMI 
lllll  IKI 

'<n  IK) 
."lO  (H) 
"i.")  (HI 
l.iilll  INI 
2IKI  IKI 
I'll  (Kl 
III  01) 
(iO  00 

II  m 

7t>  (N) 

75  m 

M  00 
722  71 

•.'."i(l  I" 
Ili.'idO  Ih. 
HIMI  (III 
K"iO  (10 
2.V)  (Ml 
4,017  (K) 


Italanci' uf  rail  li  fui' tlir  iiniainilii' uf  tlir  simmhi.  Hi  lanurs,  1 

liuat,  12lli  .1  mIv  tn  Sr|ilinilii-r  l.'nli,  IS,'<7,  ;t,  |ll(l>kiiis  at  •'<(i.."iO  22.100  00 

l''iii'  illi'Kiil  ari'i'>l,  iliti'iitiun  anil  nlliir  liarilsliips  of  Captain.!. 
II.  Wani'ii  uf  till'  "  l)i  l|iliiii,"  ami  espin.'^i's  imiincil  in 
I'liiisniiii'mi' tlii'i'i'iif 4,(KKI  00 

Kill'  illi'iral  ari'i'st,  ili'li'iilinii  anil  nllii  r  liaiiUliips  t,.  mati'  nf 

"  |)nlpliin,":inil  t*.\|i*'nsi-H  iiKiU'i'ril  in  rniisi'ijiu-m'r  tliiTi'iif.      I.IHIO  (H) 

*r,s,s<i7  71 

Inti'i'rst  nil  all  till'  aUivr  aniunnt."  at  tlir  rati-  nf  7  |  t'l'  criit  prr 
aniiiini  liniii  ilalr  uf  liiss  until  tiinr  nf  payniiMit  is  also 
claiiiinl. 


li.  1140. 


.App.  n.  120. 


p 

ill 


I  "'■I 


i  'I 


-4,.t 
J  I  SIS 


n 


188' 


I!.  7:>: 

If.   IL'IL". 

li.  rsr. 

H.  7H7. 

1{.  U'Slf. 

K.  7S7. 
H.  l-.'l.-i. 

lill.'  -Ml. 

i;.  iL'i;t, 

lin.'  -J.".. 
I!.  IL'II, 
liiU'  111. 


K. 

1227  !t 

li. 

18111. 

i;. 

7^7. 

li. 

7s,><, 

li. 

7.><."<. 

li. 

7.W. 

li. 

1211. 

Ill 

,■  1". 

li,  7SS-!P. 


li.  7s'-i 


li.  1211-., 

ilir  2(1. 

li.  7:"i, 

iiic  HI. 


THE  "ADA." 
Ci,\i.M  No.  11. 

The  "  Ada  "  wan  a  rogiHtored  IJiitisli  .-Kthoonor  ol  774s  toim 
trross. 

(^11  or  about  tlio  Itith  Juno,  1887  slio  ulciircd  from  tlio  port  of 
Victoria  for  neiiriiig  Sea  on  a  soaliii;r  voyairc 

Her  iiianter  was  James  (laudiii,  and  C.  A.  Ijundljerg  was 
mate  and  liunter. 

She  liad  seven  canoes,  one  .sealing  lioat  and  tlie  stern  boat.     10 

Slie  liad  a  crow  composed  of  eight  white  men  and  foiirtoon 
Indians;  one  of  I  lie  wliitc  men  was  iil.-io  a  hunter.  Shc^  was 
fully  jirovlsioucd  lor  tour  or  li\o  nunitjis.  Provisions  would 
have  lasted  until  November.  The  master  intended  ivmaining 
in  Behring  Sea  until  after  the  loth  September. 

As  to  the  outfit,  Cray,  the  owner  who  was  called  as  a  witness 
was  unable  to  distinguish  between  what  was  used  for  the  coast 
trip  and  the  Behring  Sea  voyage. 

Apart  from  a  large  number  of  items  which  cannot  be  classi- 
fied, there  were  paid  for  provisions  §1,;)57  ;  for  guns  and  rlHos, 
$787..')0  ;  for  boats,  §400.. "j 7  ;  tor  ammunition,  §000.93;  and  for  oq 
ship  chandlery,  8430. Id. 

The  "  Ada"  entered  Behring  Sea  on  the  1 0th  July,  and  on 
the  morning  of  25tli  Auiiust  slicwii-  seized,  while  carrying  the 
British  tlag,  by  the  rnitod  States  revomie  cutter,  the  "  Bear." 
At  the  time  of  the  seizure  the  canoes  and  boats  were  out 
sealing,  and  on  being  signalled  for,  came  buck  with  38  seals. 
The  day  of  the  seizure  was  a  good  sealing  day. 

The  ".\da"  had  lS7t3  seal  skins  on  l)oard  at  the  time  of 
the  seizure,  all  but  five  taken  in  Behring  Sea  after  15th  July. 

Immediately  after  the  seizure,  a  prize  crew  of  four  men  was  30 
put  aboard  the  schooner  iind  she  \\;is  towed  tn  Ounalaska  by 
the  cutter.  At  Ounalaska  the  vessel  was  seaivhc'd,  and  in 
spite  of  the  master's  protest.  Iicr  papers,  cargo,  guns,  itc.,  were 
removed.  Also  the  captiiin's  private  log  which  they  never 
gave  back,  although  tiie  seizing  ollicers  had  given  their  word 
of  honour  to  do  so. 

The  crew  was  afterwards  compelled  t(»  take  her  to  Sitka, 
under  threat  of  being  left  on  the  bciich,  taking  the  cajitain 
prisoner  toSitkii,  and  hauling  the  ship  on  the  bank  and  letting 
her  rot  there.  ^q 

They  arrived  at  Sitka  on  the  evening  of  the  6th  September, 
anil  four  or  five  days  afterwards  the  crew  was  released  and 
later  on  taken  to  Nanaimo  on  the  "  Rush." 

124 


(0 


TIIK    ADA. 


125 


From  OminluHkii  to  Sitka  (L'")tli  Aii,t;iist  to  GlIi  S('|itriiil)or)  i;.  i_'ir,, 
llicy  Imd  only  n  i-ouplc  of  iIuvh  Itiul  wi'utlii'r,  iiiid  wliilc  thoy ''"'  "'" 


reniaiiu'<l  at  Sitka  tiic  weather  coiitimictl  to  l)i'  tine. 

Tlie  followinir  acciaint  of  wlnit  took  [ila^eat  tlic  time  of  tlie 
soiznre  at  Omialaska  ami  at  Sitka  is  taken  from  Lumliierg's 
evidence,  ]ia,uv  787  uiid  followinu' : — 

"  Tlio  lieutenant  of  tin'  'Bi'ar'  came  on  ixiard  of  ns  and 
asked  for  tlie  slii|i's  |iaiirr«,  and  tlie  captain  iianded  tiiem  to 
liirn.     Tiicn.  lie  tnjd  ns  tliat  we  were  violatiiiir  tlie  laws  of  the 

10  United  States,  and  we  tlioiiijlit  we  wen>  not.  I  To  asked  what 
we  were  doiiiLC  there,  and  wo  told  him  that  wo  were  sealiiijr, 
and  the  eiiiitain  |ioliitod  to  the  Hag — the  Knulisli  flag  Hying  at 
the  mast-head.  The  otlicer  went  hack  to  the  cutter  and  shortly 
afterwards  he  returned  to  us  witli  seven  or  eight  men  and 
started  in  to  make  ready  to  take  us  in  tow  and  tolil  ns  we  wore 
seized.  I  told  him,  and  so  did  the  captain,  that  our  hoats  were 
out  ftealing.  lie  stopped  for  a  while  and  told  ns  to  signal  for 
the  hoats,  which  we  did.  We  got  the  canoes  on  hoard  :  they 
had  .'iS  seals.     It  was  just  H.IJO  a.m.,  thov  had  gone  out  about 

20  6  a.m. 

"The  ship  was  taken  in  tow  by  the  'Bear'  and  a  prize 
crew  left  on  hoard  :  the  lientomint  and  three  men.  The  cutter 
made  for  Ounalaska,  where  we  arrived  sub.so(piently.  They 
anchoreil  us  there  all  niL'ht.  The  next  morning  they  took 
guns  and  money  and  everything  from  ns  and  put  it  on  board 
the  '  Rear.  "  They  searched  the  whole  of  the  vessel  right 
tlirough  :  they  took  skins  out  and  salt,  not  the  provisions. 
Before  the  arms  and  money  were  taken  the  captain  wrote  out 
a  protest  that  nothing  was  to  be  taken  out  of  the  ship.     The 

30  lieutenant  took  the  papers  and  kept  them.  A.l'ter  they  had 
taken  out  the  skins,  Captain  Ifeah'  stood  on  the  wharf  and 
asked  for  the  log  book  ;  onr  cai>tain  saiil  that  he  had  no  log- 
book for  the  shi|i  but  only  a  private  log.  Captain  llealy  said  : 
I  want  to  see  it.  Onr  captain  said  :  If  you  will  give  me  your 
word  of  honour  to  gi\e  it  back  to  me,  I  will  get  it  out?  lie 
said  then  :  Ifand  it  here.  My  ca})tain  told  me  to  go  down  and 
got  it,  and  I  handed  it  to  him,  and  he  handed  it  to  Captain 
Ifoaly,  but  never  got  it  back.  Both  1  and  my  captain  asked 
the  captain  and  lieutenant  on   board  the  'Bear'  to   return  it, 

40  anil  they  would  not  give  it  back. 

"  When  everything  was  out  he  told  the  ci'ptain  to  take  the 
scliooner  to  Sitka,  and  the  crew  refused  to  go;  they  wanted  to 
know  who  was  going  to  [)ay  them  for  taking  her  down.  The 
master  reported  what  they  said  to  Captain  Ilealy.  The  latter 
pointed  overtotlH>  other  vessels  seized  the  year  before,  anil  be 
said  :  I^o  you  see  those  three  rotten  British  hulks,  there? 
Take  her  down  to  Sitka,  or  else  I  will  haul  her  over  tliere  and 
let  her  rot,  and  I  will  put  your  crew  on  the  beach  and  take 
you  down  in  one  of  the  cutters  as  a  prisoner  to  Sitka.     The 

00  captain  said  to  the  crew:  Do  you  hear  what  that  man  says? 
What  are  we  ti>  'hi?  There  was  nothing  said  for  a  while,  and 
tlioy  consuiteil  amongst  themselves  and  the  captain  came  again 
and  asked  :  Are  yon  willing  to  go  or  what  is  it  going  to  be? 
They  said  they  would  go  to  Sitka. 

"  The  Indians  were  all  on  board  of  the  'Ada'  and  went 
from  Ounalaska  to  Sitka.  There  was  a  petty  otHcer  from 
one  of  the  cutters.  We  wore  towed  out  by  the  "Boar.'  I 
think  it  was  nine  days'  passage  between  Ounalaska  and 
Sitka. 

1  0      "At  first  we  were  not  allowed  to  go  on  shore.     The  captain 

went  ashore  and  the  crew  remained  on  board.     The  Indians 


I!    Till, 


■'  ;i ' 


1iif 


126 


TlIK    .\\>A. 


weio  all  told  to  May  o\\  Itniinl  for  a  wliili'  until  wo  tint  t'lirllicr 
oi'dorn.  Till'  tTt'w  ami  iii_\.ii'lt' wi-re  i()Iii|k'1U'i1  to  slav  on  Ixninl 
tho  HfhoDiicr  at  Sitka  four  or  live  (lavs,  or  Hoiiu-thiiiij  like  that. 
Tlioro  was  a  >i|)r(ial  |iolicc'iiiaii  on  Imai'd  in  cliarifi'  ot'onr  voshuI 
and  ho  nniainoil  tliric  mostly  all  the  tinio.  Attor  tour  oi' livo 
(lay.-*  or  a  week.  wIumi  the  lir-t  -ifanilmaf  with  mail  cunit'  up, 
the  laptain  I'anic  and  told  nn  tliat  wo  wore  to  (|iiit  the  schooiu-r 
niid  that  he  was  goiiij^  away.  Me  said  that  the  ircw  was 
ac'f|iMtto(l  hut  the  vessel  had  to  remain. 

•'  We  had  iiuthinu-  to  j;o  away  with.  W'e  applied  to  the  10 
(lOVeiMioi'  tor  means  to  ifct  away.  We  wei'e  at  Sitka  nnlil  tho 
'Joth  Septendter  and  li\  cd  on  hoard  ;  at'tir  lour  or  ti\  e  days  we 
eould  go  anywhere  we  liked.  We  were  eatinj^  all  oiir  own 
ship's  food.  I  thiid<  some  of  the  provisions  were  taken  eharji^o 
of  hy  the  constahle.  1  saw  him  takinu  provisions  hut  not 
when  lie  was  on  dut\  ;  it  was  afterwards,  id'ter  we  were  lil)er- 
atod.  We  asked  for  thi'  loan  of  a  ijun  to  shoot  for  food,  hut 
eould  not  get  oia'.  We  were  taken  hefore  tlie  judge  ;  1  was 
asked  some  (piestious.  .\fter  a  week  had  run  out  wo  could 
not  get  away  ns  wo  luu'  <-  means  to  pay  our  jiassage.  We  -JO 
fnudly  got  away  on  the  '  Kiisli,'  We  had  to  go  and  make 
apjilieation  to  judi^'e  DaxNson  :  he  told  us  that  we  eould  get 
away  on  the  •  Rusli '  hut  he  did  not  know  when  she  w  as  going. 
That  was  after  we  had  stayed  on  hoard  ten  days;  we  had  had 
no  more  provisions  at  all.  I  went  up  and  asked  liim  how  it 
was  going  to  he  hoeausi'  tlie  Indians  were  running  alter  me. 
T  had  no  control  over  anything  as  long  as  it  was  that  way.  I 
do  not  know  who  took  the  things  away  ;  I  had  no  conmiaiid 
over  the  crew  nor  over  tho  provisions,  lie  said  there  were 
enough  provisions  on  board  to  last  ns  as  long  as  we  were  at  gQ 
Sitka.  I  said  I  did  not  know  where  the  provisions  were,  hut 
that  there  was  no  more  on  hoard  of  the  schooner.  There  was 
some  hiscuit  in  the  hold  that  the  Indians  had,  and  then  we  had 
to  sell  our  clothes,  what  little  we  had.  We  sold  everything 
wo  had.  right  down  to  our  hoots  hefore  we  got  away,  ami 
timilly  the  '  Rush  '  took  us  on  tin'  25tli  Septemhcrand  arrived 
at  Victoria  on  tho  4tli  Octoher." 


li.   iL'l.i. 


James  Gaudin,  the  master,  gives  evidence  to  tho  same  oii'ect, 
and  adds : — 

"We  waited  at  Sitka  until  Instrnctions  were  received  as  to 
what  they  were  going  to  do  with  us.  We  attended  the  court  40 
day  hy  day,  and  each  day  we  weie  told  to  wait  until  instruc- 
tions arrived.  I  think  tluit  the  '  Allie  I.  Alger'  and  the 
stcaJiiiM'  '  Ancon  '  arrived  at  Sitka  on  the  same  day.  Thoy 
hro'ig  :t  an  order  from  W^ashington  to  release  the  crews.  We 
iivri\vd  at  Sitka  on  the  e\i'!iing  of  tho  .'ith  Septemher,  and  it 
waf.  on  tho  evening  of  the  8th  that  the  '  Ancon  '  arrived.  I 
iott  the  next  day.  1  gave  tho  purser  of  the  '  Ancon  '  my 
note  tor  my  ticket  to  raise  the  money.  When  orders  came 
from  Washington  to  release  the  crews  I  made  an  application 
to  the  judge  and  asked  him  what  he  was  going  to  do  with  our  r^Q 
men,  and  it  was  then  decided  that  they  wore  to  go  down  on 
the  'Rush.'  The  'Rush.'  had  not  arrived  at  Sitka  at  that 
time.  Suhsc(|uently  she  hrought  them  down  to  Nanaimo. 
This  was  not  their  home." 


i;.  ijiKi.  In  Septendier,  1S87,  the  "  Ada,"'  her  tackle,  apparel,  hoats, 

cargo  and  furniture  wore  lihellcd  in  tho  I'nited  States  District 
Court  at  Sitka,  hy  the  United  States  District  Attorney. 


TIIK    AI>A. 


127 


w 


All  ap|>('iii'i\iiri«  liy  ('(iiiiiscl  was  lilcd,  ami  iil'li'f  triid,  tlic  pro-  ii   r.ic. 


.11  Octol.cr   Mill,  1«S7, 


|K'rt>  Ht'i/cil  wuH 

cluri'd  forloitiMl  to  fliu  iisu  oltlio  Uiiiteil  StatcH. 


I'oiiiK'iiint'i 


I  and 


Ah 


a  n 


•milt  111'  till'  Hoi/iirc  ami   lorrfitiirc  nl'  liin   vessel  tlie  i:   \'s.i». 


owner  war*  coniplulely  ruined. 


Til 


Adii 


wa 


s  liiiilt  in  \-<'*'2  ill  Yoknliaina.      Her  frame,  i;  7si. 


keelson  uikI  caliiii  tiltiiiLCs  were  ot' kiidvi.  Tlu'  wood  work  of 
tlic  enliiii  WUH  of  tlic  same  material,  and  alio  wan  planked  will. 
OroiTon  lir.  81ie  wan  eopper-fasteiied  to  tier  wafer  line.  Clias. 
10  A.  linndlicrir,  who  saw  lierevt-iy  day  during  the  course  of  coii- 
Htruction  says  all  the  work  was  first-class.  He  was  present 
when  the  contract  for  liuildinu  wus  made  in  Yokohama,  anil 
says  that  the  amount  tor  the  hull  and  spars  was  if.'), 500,  and  i;  :<,. 
for  halaiice  of  littiiigs,  running  gear,  hawsers  and  upholstering, 
IS'J.OOO. 

Janiert  Gaudin,  the  miwter,    examined    the  "  Ada  "  heforo  I!,  i-'iu'. 


leaving  lor   Behring   Sea  and   fiuind  hoi   in  perfect  condition,  ii 


Tie  savs  she  w 


IS  the  liest  sealinir  vessel  in  Victoria  at  ihe  time. 


When  the  "  Adi 


can 


le  to    \'ictoria    in    1887,  Ch 


"y, 


lior  I! 


1-Jl:i 


7Mi\  1:; 


20  owner,  was  otl'ered  .Sl',000  for  her — without  any  provisions — h}' 
Mr.    Siewenl.      In    ri'jily    Mr.   <'i'ay  said   that  he   would  not 


take  .510,00't  for  the  ship. 


Sit 


iowerd  says  the  "  Ada"  was  well  i)uilt,  well  found  and  in  i;.  ijij 
good  condition,  and  thinks  she  was  well   ivorlh  eight  or  nine 
thousand  dollars. 

Richard  Collister,  loi'  thirteen  years  Inspector  of  Hulls  for  i;  mij 
the  Dominiou  IJovernment  in  British  Columbia,  and  who  pre- 
viously was  a  rtliip-huilder  in  Liverpool,  aurvoyed  the  "  Ada  " 
ill  Aiiril,  \Sbl,  for  Lloyds' underwriters,  and  made  a  thorough 
ijO  examination  ot  iicr.  In  his  opinion,  from  liis  knowledge  oi'tlie 
value  of  shi[is  and  the  cost  of  siiipdmiiding  in  N'ictoria,  the 
"Ada"  was  then  worth  fully  §:',000. 


iM 


The  claim  of  Captain  (iaiidin  for  personal  lianiages  for  arrest 
ill  the  year  1S87,  needs  siiecial  mention,  as  a  motion  to  dismiss 
it  on  the  ground  thai  such  claim  was  not  [uopcrly  within  the 
terms  ol  the  Convention,  was  made  at  the  hearing.  This  claim 
was,  hy  mistake  on  the  part  vif  the  agent  (d  the  owner  of  the 
"  Ada,"  not  included  when  the  other  claim  in  connection  with 
the  vessel  was  sulimitted.  Captain  Caiidin  thought  that  it  had 
40  heeii  so  included  and  it  w:is  oniy  on  seeing  the  printed  list  of 
the  British  claims  that  he  discovereJ.  that  such  was  not  the 
case.  He  iniiiiediately  re(piested  that  his  claim  might  be  added 
to  the  list.  Her  Majesty's  (Jovernmeiit  caiiseil  impiiry  to  be 
made  into  the  eireiimstancesof  the  delay  and  after  such  inquiry 
decided  that  his  apjilication  should  be  granted  and  that  bis 
e  aim  should  be  pressed. 

Uii  the  7tli  June,  1894,  Sir  Julian   I'auiieefote  wrote  to  Mr. 
Gresham,  stating  : — 

"I  have  now  the  honour  to  transmit  herewith,  by  direction 
50  of  Her  Majesty'*!   l'vinci[)al  Secretary   of  .State   for    Foreign 


♦< 


128 


THE    ADA. 


Affiiii's,  ii  complete  li«t  and  triiiiimary  of  those  claims,  together 
with  incnioraiida  of  the  additions  and  amendments  made  since 
their  original  iireseiitation."' 

The  memor-'Mda  referring  to  the  case  of  the  "  Ada  "  was  as 
follows : — 

"Claim  of  the  master,  Captain  Gaiulin,  for  personal  loss  and 
damage,  3,000  dollars. 

"  This  claim  was,  by  a  mistake  on  the  part  of  the  agent  of 
the  owner  of  the  'Ada, '  not  included  when  the  other  claims 
in  connection  with  this  vessel  were  entered.  Captain  Gaiidin 
thought  that  it  had  been  so  iuchided,  and  it  was  only  on  see-  iQ 
ing  the  printed  list  of  the  Britisli  claims  that  lie  discovered 
tluit  such  was  not  the  ease.  He  at  once  reijuested  that  the 
omission  might  be  rectified,  and  his  claim  aclded  to  the  list, 
and  Her  Majesty's  Government,  after  causing  an  in(iuiry  to  be 
made  into  the  circumstances  of  the  case,  decided  that  his  appli- 
cation should  be  granted. 

"  Captain  Gaudin's  claim  has  aecor<lingly  been  added  to  the 
schedule  of  the  claims  entered  with  resiiect  to  the  schooner 
'Ada'." 

No  objection  to  this  claim  being  included  was  raised  on  oq 
behalf  of  the  United  States  and  in  the  negotiations  which  sub 
secpieiitly  took  place  for  the  settlement  of  the  question  of  com- 
pensation by  the  payment  of  a  lumj)  sum,  this  particular  case 
was  included  with  the  claims  to  be  settled  by  that  lump  sum. 
A  reference  to  the  terms  of  the  present  Convention  shows  that 
they  are  broad  enough  to  include  this  as  well  as  other  personal 
claims;  the  words  in  the  schedule  being  simply — 

"Personal  claims,  1886. 
"      do  do       1887." 

It  is  submitted  that  this  claim  is  clearly  within  the  terms  of;]o 
the  iJonvention. 

Her  IJritaimic  Majesty  claims  tlic  following  ilanuiges  as 
resulting  from  the  iiri'misos  : — 


II.   1L>'S. 


1 1 1:.. 


I!.  I J  17 

I!.  im: 


Valii 


I'n-niiuni  of  'iisnraiicr  puid 


i:i  «iiM-,  I'l  rillis 
n.-liiiii^r,  S  .ir  sin  , 


rl, 


l'',-lilllil(c.i    \,ilui'iir    IpImvU^iII-.   allllllllllilioll,   >lli|l    (llllllll 

l"i>,  ,Vr..  w  hicli  «.  Ill  I   liM\i>  n  iiiaini'l  Mt  llir  iinl  i.f 

tlif  \nyiijrf   .  

l-!>tiin;iti'il  \aliic  iif  iitiiitlral  iiisl  nimnii-,  iIihmiiiiiii  Iit, 
(jiiailnnil.  srxtant.  i'iiih)ni,s>fs.  iVc 

l!-lill  '■■!  vallli  III'  ulliil-  lllli'"liMlllliiMr  -raliii^'  iillllit, 
all.,  c'l  ailiili-  v\  liii-li  »■  r.  '[..iililli-^  1,11  l.rial'il  \rs-i-l 
I  lilt  wliic  h  ciimMii  III'  ~|'i  riallv  ini  iitniiiil    . , 

I'a^- i^'i'  "f  ' 'ajilaill  I  iail'lllj         . 

K\)'i  II-.  >  aliil  liat'l-llii''- III  iT'U.  I'L'    il  -a\  s.'iOit  i-ai-li 

C.i^l  i,f  il.'li.lii-.    at    SitK.i 

HMTlii.ti  «  ilh    |Mi'M  iilatii'ii  i.f  claili.^ 


I'a|.!    Wall.,, 
al   (  lllawa 


I'aal  Mr.  I'..nl.y,  ,|iit. 
r.ilvia's  clialitri. 


11,111111  lilt 

IL'  III! 

IL'M  l.ri 

ii;i;  .■,7 

7S7  ."id 
Ml  nil 

'iiiii  (III 
iCiii  nil 

i:iin  nil 

."n  nil 

1 1,  nil  iin 

."iiin  I  J) 


.•_'  nil 
,"i  I  IIP 

(I  IHI 


4(» 


10 


PtTsnlial  t'\lH-ii: 


TUB    ADA. 


•nf  (.MIIIT  frun,    Vok.ilMUii 


KSriisk 


ins   ScizCll    nil    l|(|,i,-,|    „.||| 


'iicr  at  NiriO. 


Kx|irii«.f-  iiiiil  liiiiilslii|,,if 


iiv\v(22iiifiiiit.*r)0()oacli). 


Kst 


iimitcd  catch  ("  can 


l>o.t  sea 


inch 


hliK  fi 


"'••',  I    Inmtinjf  Imi 


iKfriiiii  LMth  .\iit,'iist  to   15th  S, 


lat  ami  a  Hti'in 


iMivcl,  Klli-I  skills  at  .*(: 


'ptcUllKT, 


Imiv  thi.  ilh'pil  aiTi'st,  (li'tcnticiii  and 


laiiii's  ( iaiidin    ii 


incnni'd  i 


iastn-iif  the  "  Aih, 
■iiiisr{|iifnct'  thcrriif 


:)tliii-  hai-dsl 


and 


ll|JS    III 

i'X|ii;nm'a 
.*;,'t,(«IO 


Kiir  thfilh'L'al 


i.f  C, 


■(falaiTcst,  ili't 


A.   Linull 


i'ntii)iiandi)thfrhardshi| 


I'XiK'nsi's  inciiiiTd  in 


ii'i>,',  iiiali-iif  il 


\d. 


I,"  and 


iin«-i|Uc-iicc  thiTciif H.OOI) 


129 


■•<  .")(K)  (II) 
12,111 1  (III 
11, IKK)  nil 


ii.'.nn  no 


(i,(K)o  no 


I  I 


••s  ill.iKi;!  117 


Im 


I'li'Kt  111!  all  till 


datfiif  liis, 


II'  aliiivi|  iti'ins  at  the  rate  iif 


illilil  |iaynii'iit. 


I    jllT  Cl.'llt 


n»— 17 


k.'^ 


■PH 


1887. 


I!.  i;«iii. 

liiv  11. 


li.  1  ini;. 
liiii'iiii. 


I!.  i;W!t, 

line  M. 


l;.  I:i'.i7. 
liii.'  liiL'ii, 


i;.  1:1:17. 


TIIK  "TRIUMI'lI." 

Claim  No.  12. 

The  'Triumph  "  was  a  British  schooner  of  15  tons,  regis- 
tered at  the  port  of  Vietoria. 

In  the  year  1SS7,  she  was  outfit teil  tor  a  voyajie  to  J?ehring 
Sea  witli  the  intention  tliat  she  sliould  remain  until  the  end  of 
Septend)er.     On  that  point  the  owner  says: — 

"  Q.  In  a  general  way  are  you  able  to  say  to  what  extent  jo 
you  outfitted  and  provisioned  the  vessel?  A.  All  I  can  say  is 
this,  of  course  I  calculated  that  the  schooner  would  stay  up 
there  until  pretty  late  in  the  season — that  was  in  Sejitenibcr. 
I  gave  the  captain  ]iarlicular  orders,  1  want  you  to  Ijunt  there 
until  the  last,  until  yt)U  are  driven  out  of  th  ■  Hi  ;i,  and,  of 
course,  1  gave  them  what  I  considered  :•  .^.'Oii  .:  <  ninnths" 
provisions  and  the  [iroof  of  it  was  that  the  soi.  oner  ■  i..ie  bark 
pretty  well  provided  with  provisions  after  ihe  uip." 

The  witness  Smith  also  says  : — 

"  To  the  best  of  my  j\idgment  I  should  think  that  there  were  20 
plenty  of  provisions  for  the  crew  we  were  carrying  to  last  us 
until  the  beginning  or  middle  of  Octdher."' 

And  he  goes  on  to  say  that  when  they  arrive<l  on  the  coast 
they  had  plenty  of  provisions  left.  They  there  gave  the  Indians 
who  were  landed.  Tor  10  sacks  of  llnur;  .'i  or  1  boxes  of 
biscuits  ;  several  pounds  of  sugar,  and  landed  a  balance  over 
and  above  thai  at  the  store  of  Mr.  Byi'nes  on  their  return  to 
Victoria. 

The  "  Triuuiph  ■'  lett  Victoria  for  the    IJeliring  Sea   about 
the  20th  or  21st  of  May,  with  a  cew  consisting  of  master  aiii  30 
mate  and  8  Indians.     She  carried  4  canoes  and  no   stern  b'i.;t. 
Sealing  was  engaged  in  on  the  way  to    Itcbring  Sea  and     bo'.t 
54  skins  were  taken. 

On  the  4th  Angusi,  when  lying  becalin'.'d  al  the  n!onil;  nt 
Ounimak  I'ass,  al  breakfast  time,  the  Indian:*  reported  a 
steamer  in  sight.  This  turned  out  to  be  the  revenui'  cutter 
"Rush."'     A  lieutenant  from  tb'   cutter  came  on  boanl. 

The  I'ollowing  stat'inent  of  what  occurred  is  taken  iVom  the 
evidence  ol' Smith,  inati'  lor  the  vo\age  : — 

"  The  lirst  qu('sli(vii  be  aski'd  was  w  by  we  did  mit  lia\  e  our  Aa 
ensign  up  :  and  tb.'  captain  told  the  lieutenant  that  '  did 
not  know  that  be  was  a  revenue  cutter,  ami  tlieli  •!■  .;i:it 
ordered  us  to  hoist  our  colours  immediately,  wbicli  e,  >!.  1 
He  then  enteriMl  the  cabin  ami  demanded  the  log  boo!.  .  ■d 
the  jiapers  belonging  to  the  ship,  w  nirh  were  banded  to  !.itn. 
lie  nnidc  sonu'  entries  in  '•'•^  own  ]i'i\:ite  book  and  a>ked  the 
captain  what  bis  bnsirie»  \  's  ;  tb-.^  captain  told  him  that  we 
were  bound  on  a  scaling    Myage  intu    Behring  Sea.      I  believe 

lao 


10 


TUB   TRIUJIPII. 


131 


then  that  lie  went  back  to  report  to  iMe  fa}),'iiin  of  the  cutter, 
and  lie  ininiediatoly  retunieil  and  searched  the  vessel.  A  man 
went  down  in  tlio  ship's  hold  and  I  went  will,  him,  and  lie 
turned  over  the  provisions  and  took  the  skins  oui  of  salt  and 
counted  all  that  wo  had  on  h.iard.  ITc  made  me  open  the 
water  barrels 

"  Q.  Did  he  ask  yon  if  you  had  any  rilles  on  board  '  A.  He 
asked  if  we  had  ritles  on  board  and  the  ea]»taiii  lold  him  that, 
we  had  only  one  ritle  on  boai'd  and  no  ammunition.     I'e  then 

10  entered  the  cabin  aji;ain  and  told  us  that  Captain  >liepard  had 
a  right,  aecordina'  to  our  log,  to  seize  us  then  and  there,  and 
also  what  we  hail  on  board  the  \essel  as  tlu'  seals  were  caught 
within  the  limits  of  the  United  States  jurisdiction.  Wc  did 
not  understand  that,  and  the  captain  asked  him  how  it  was. 
lie  took  out  our  North  I'aciiie  Ocean  chiwt  and  drew  line 
across  the  southmost  I'ajies  of  Alaska  to  the  southmost  point 
of  the  Aleutian  Islands,  and  he  drew  the  line  and  claimed  all 
the  water  within  that  line  as  being  American  territory.  And 
he  claimed  all  the  seals  that  wi;  had  on  board  that  were  cauglit 

20  within  that  limit.  TTo  said  that  as  we  were  working  on  shares 
they  would  give  us  the  chance  to  take  the  vessel  home.  He 
demanded  an  answer  from  thecaptuin,  and  asked  him  what  he 
intended  to  do;  the  captain  told  him  that  he  had  orders  from 
his  owners  to  proceed  to  Behring  Sea  and  finish  the  voyage  ; 
that  was  not  sufficient  and  the  lieutenant  insisted  upon  an 
answer;  the  captain  declined  to  give  it  to  him.  The  lieutenant 
returned  on  board  the  revenue  cutter  and  the  revenue  cutter, 
steamed  close  alongside  of  lit,  and  Captain  Shepard  hailed  us 
from  the  bridge,  saying  that  if  he  saw  us  in  Behring  Sea  after 

30  this  warning  he  would  seize  us  on  sight." 

The  lieutenant  also  told  the  master  of  the  "  Triumph  "  that 
the  schooners,  "Grace,"  "Dolphin,"  "Anna  Beck"  and 
"  Sayward  "  had  been  seized. 

After  this  0(;currence,  the  vessel  remained  becalmed  for 
some  time.  Some  of  the  rndians  who  understood  English  had 
heard  the  statement  of  Captain  Shi'phard  and  began  to  feel 
uneasy.  They  demanded  an  immediate  return  home.  The 
captain  and  the  mate  talked  the  matter  over  and  the  captain  ex- 
plained that  he  had  some  information  as  to  possible  sealing 
40  grounds  away  in  the  west,  and  after  that  when  the  Indians  de- 
manded a  return,  the  captain  told  them  the  same  story,  and 
that  lie  would  try  to  hunt  on  some  sealing  ground  where  he 
would  not  be  in  danger  of  seizure. 

He  also  promised  the  Indians  that  if  they  would  tinish  tJic 
voyage,  he  would  give  them  as  a  bounty,  the  ainount  of  the 
advances  previously  made  to  them. 

The  Indians  being  thus  pacified,  the  vessel  took  a  westward 
course  and  entered  Behring  Sea. 

Hunting  operations  were  begun  on  the  5th  August  and  con- 
r)0  tinned  until  the  25th,  inclusive,  when  the  vessel  began  her  re- 
turn voyage. 

The  witness  Smith  gives  the  following  evidence  with  refer- 
eno'"  to  that  matter : — 

'  tj.  What  made  you  leave  the  Behring  Sea  on  the  24th  or 
25tli  of  August,a8you  have  stated? — A.  Being  olf  the  regular 
sealing  ground,  and  from  what  1  have  been  given  tii  under- 
stand from  the  captain,  that  seals  were  scarce  and  the  Indians 


t:^ 


R.  i;«is, 

liiir  20-;!(l. 


H.  VMS, 
lini'  IS. 


I!.  I:i'.i!i. 

Illlr  .'KMK. 


(;'■. 


132 


THE   TBIUMPII. 


K.  1 KKI, 

lini'  III. 


K.  14(11, 
liiii'  55. 


were  afraid  of  seizure,  and  they  tlioiiglit  it  best  to  save  what 
we  had  on  lioard,  and  the  captain  concluded  to  conio  lionie ; 
in  fact,  the  Indians  refused  to  launcli  the  canoea  on  the  hist 
day  of  our  being  there." 

"  Q.  What  kind  of  weather  did  you  have  for  the  few  days 
before  the  24th  or  25th  of  August,  the  time  you  loft?— A. 
So  far  as  I  can  recollect.  I  was  21  days  engaged  in  the  business ; 
we  launched  17  daj's  out  of  tiiat — that  will  give  a  pretty  good 
idea  of  what  kind  of  weather  we  had. 

"  Q.  But  the  two  or  three  days  before  you  left  what  kind  of  10 
weather  did  you  have  ?— A.  The   vessel  "lay  becalmed,  foggy, 
no  wind  to  drive  her  one  way  or  the  other," 

It  should  be  noted  here  that  the  witness  was  afterwards  re- 
called and  produced  his  book  containing  a  record  of  the  daily 
catch  of  seals  in  Behriug  Sea,  from  which  it  appears  that  from 
the  5th  to  the  25th,  inclusive,  the  vessel  had  19  lowering  days. 

He  also  says  that  on  the  25th  they  took  33  seals,  but  that 
as  a  general  thing  there  were  not  many  seals  on  the  ground 
over  which  they  had  been  hunting. 


Legal  and  other  expenses  were  incurred  in  preparing  and  20 
presenting  the  claim  prior  to  the  appointment  of  this  Commis- 
sion. 


Her  Britannic  Majesty   claims   the   following  damagOH   as 
resulting  from  the  premises  : 

Illfgiillinardiri};  and  scarcli  (if  vcHM'l .s  L',llil(l  IH) 

l'i'ii|Mii'tiim  ipf  Waniiis  cxiK'H-ies  tu  Ottiuvii 152  (K) 

'I'iini'  a:i(l  expense  of  owner ^(H(  tnt 

UelyeaV  eli.ii-K'es    25(1  00 

Kstimnted  e:ilcli  if  sell lei-  nut  inlerfeird  with  I  I  eanoe^  Mvd- 

Mii!    fnun  ."itli   A\iKii>t    to    l."illi  .Si|itiTiil«i'.    inelu^i.l■   l(  ^> 

IS(I  skins  nctiiidly  talieni  niaking  41!l  ,it  «i>..")0  'J.7-'.i  ,5(1 

«  5,325  50 

lnleie,~t  on  all  aliove  iteni^  at  tlie  rati-  of  7  fiw  c.nt  fi..ni  .late  ,,f  lo:.s  mitil  iiav- 
nieiii. 


30 


1889. 


TIllC  ".IIJANITA." 

Claim  No.  13. 

Tli(!  "  Jiuinita  "'  was  a  British  schooner  of  40  tons  registered 

at  the  I'ort  of  Victoria. 

According  to  the  evidence  of  ("lurk,  the  master,  she  was  well 

titted  for  sealini!:.  Tliis  statement  is  verified  by  the   schedule  J^- 'P-'',, .. 

„  .  .  .  .  .  liiuiaii(li:tri;i. 

put  in  evidence  of  the  articles  comprising  the  provision  and 

outfit,  the  total  value  of  which  amount  to  the  sum  of  §2,254.65. 
10      In  the  month  of  January,    1889,  she  was  outfitted  for  a 

sealing  trip  on  the  coast  and  afterwards  received  additional  nVi,.  i  ' 
supplies  and  outfit  for  the  Behring  Sea  voyage  v/hich  she  con- 
templated taking  in  pursuit  of  seals. 

Her  crew  consisted  of  14  Indians  and  4  white  men,  inclu- 
ding the  master.  She  carried  7  canoes  and  the  stem  boat. 

She  was  provisioned  for  a  voyage  which  would  last  well  into 
October  or  November  and  the  master  intended  to  stay  until  '{■  i^^".  '•  i. 
the  10th  September  as  had  been  arranged  with  the   owner 
before  leaving. 
20      She  sailed  from  Victoria  for  Behring  Sea  in  the  first  part  of  |.  ,.^.,,| 
May,  sealed  on  her  way  up  and  reached  the  sea  on  the  2nd  '•  '-• 
July. 

She  immediately  commenced  sealing  and  lowered  boats  for 
the  first  time  on  the  10th.    She  kept  away   from  the  good  li.  i;t<i, 
grounds  during  the  first  part  of  July   fearing  seizure.     Her  iWii,  i.';w 
catch  on  the  80th  was  thelargest  of  the  month,  viz. :  159  seals. 

On  the  3l8t  July,  about  daybreak,  when  the  schooner  was 
on  the  scaling  grounds  and  flying  the  British  Hag,  the  United  |.  ],h;j.|,\.),(4i 
States  revenue  cutter  "Bush"  came  alongside  and  the  oom- 
80  manding  oflicer  hailed  the  vessel  and  sent  a  boat  on  board. 
The  officer  in  charge  of  the  boat  asked  if  there  were  any  skins 
on  board,  and  when  he  received  an  answer  in  the  aflirmative, 
asked  where  they  were  aken,  and  was  told  iirincipally  in  the 
Behring  Sea.  Tie  reported  to  the  commanding  officer  of  the 
"  Rush,"  who  ordered  him  to  seize  the  vessel  and  skins.  The 
skins  were  transferred  to  the  "  Rush."  The  seizing  officer  also 
took  the  ship's  papers,  and  the  spears  of  the  Indians,  and  asked 
for  their  guns.  The  Indians,  however,  hid  the  good  guns  and 
passed  up  some  old  ones,  which  the  seizing  oflicer  did  not  R.  iH4ii. 
40  take.     There  were  13  or  14  spears  taken. 

The  commanding  otficer  of  the  "  Rush  "  at  the  time  gave 
to  the  master  of  the  schooner  a  letter  dated  Slst  July,  1889, 
certifying  that  the  "  Juunita  "  had  been  seized  for  violation  of 
section  1956,  Revised  Statutes  of  tlie  United  States,  and  that 
her  8hii>'s  pai)ers,  ciinsisting  of  registry  and  clearance,  had 
been  taken  possession  of  by  the  seizing  authorities. 

133 


i;  V 
^•^1 


m 


IS   W] 


->.    "! 


i;.  Kiiii. 


134 


THE   JUANITA. 


After  the  seizure,  the  master  of  tlie  schooner  was  ordered 
to  go  to  Sitka,  but  came  to  Victoria  instead. 

The  boats  were  not  lowered  for  scaling  after  that  date,  but 
two  seals  were  taken  on  the  way  down. 

The  ship  got  back  to  Victoria  about  the  end  of  August  and 
was  laid  up  until  the  opening  of  the  next  sealing  season. 


Legal  and  other  expenses  wen^  incurred  in  the  pro[)aration 
and  iirescntation  of  the  claim  [)rior  to  the  a[Hiointment  of  this 
Commission. 


Her   liritannic   Maj'sty    cltiims  the  following  damages  as  10 
resulting  from  the  premises  : — 

Illr-aniuMidiii],', -iMU-li  ami  :l^n■^t  .if  Vl■^.sl•l s  ;;,i!(iii  (ill 

N'.iliif  uf  skills  taken  Iniiii  >iiiii  at  tinii'  nf  <ii/.urc,  ilL':.'  >kill^  a! 

sll li,S4:i  Kit 


1  I  >l»Mis  Ml  -S!  each       I'l  »<'• 

Slii|i'~  paiiiTs    . ,    .  lT)  ml 

I'lriyca'.s  cliarjrc- :;.")((  'ill 

Tiiiii- anil  cxiHiisrs  ,,f  uwiici -Jill)  (III 

K,-tlniati'il  catrli  il  m-1iiiiiiii-i  mil  iiiliTtrii'd  witli    '  i-aiiiirs  .'inil 

1  liiiiii  ami  >liiii  lii.at  sivilins;  fn.ni  .'iNt  .liiK    :  i   l.'itli  .Sep-  OQ 

li-nil«T,  inclii«ivr)  21(12  skins  at  .•<11    2;i,122  (Id  " 

•S  32,4H1  (M( 

Intcri'st  nil  all  aluiM'  iti'iu-  at  latr  nf  7  |k  r  iriit  finiii  ilatr  nf  Inss  until  iiayinint. 


1889. 


THE  "  PATIIFINDEli." 
Claim  No.  14. 


The  "  Patlifinder  "  was  a  British  schooner  of  70  tons. 

She  was  purchased  at  Halifax,  N.  S.,  and  was  tlic  first  of  the  i!. 


fleet  used  in  sealing  which  came  around  tlie  Horn.     Her  cost 


liii 


III. 
III. 


!'.a.  i\w  1. 


to  her  owners  when  she  arrived  at  Victoria  was  about  §0,500.  li" 
In  1886,  she  went  on  a  sealing  voyage  to  Behring  Sea  and  k. 

took  1460  seals. 
10      She  was  fitted  out  for  the  season  of  1889,  with  the  intention 

that  she  should  remain  during  the  whole  season.     It  was  left  i;.  ^:<<l:<. 

to  the  discretion  ot  the  master  to  determine  how  long  he  could 

stay,  having  regard  to  the  condition  of  tlie  weather.     She  was  i;.  i.mhi, 

jirovisioncd  for  a  voyage  to  continue  until  October. 
She  carried   a  crew  of  20  men  and  had  five  liunting  boats  '>.  7ii7,  liim  i. 

and  a  Htern  boat.  liVie  L'n'. ' 

The  "Patlifinder"  reached  the  sea  about  the  1st  of  July,  i;.  riir. 
and  carried  on  sealing  operations  until  the  29th.     On  that  day  "" 
about  10  a.  m.  she  was  seized  in  lat.  57"24  N.  and  long.  17l'.J5  i;.  i.Mi:t, 
20  W.,  by  the  United  States  revenue  cutter  "  Rush,"  for  violation 
of  Section  1956  of  the  Revised  Statutes  of  the  United  States. 

The  seizing  officer  removed  from  the  vessel  the  following 
articles,  viz  : — 858  seal   skins ;    7  shot  guns  ;   4  Winchester  i;.  re,:, 
rifles;  300  cartridges,  5  boxes  of  shells,  and  the  salt  which  ""  "' 
was  on  board.     lie  also  took  possession  of  the  ship's  papers,  |,  |.„, 
consisting  of  certificate  of  Registry  and  clearance.  i""'  -'•• 

The  seal  skins,  guns,  rifles  and  other  articles  removed  from 
the '"  Pathfinder "  were  taken  to  Sitka  and  there  proceeded 
against  at  the  instance  of  the  United  Slates'  District  Attorney 
30  and  such  proceedings  were  had  that  thej'  were  afterwards  con- 
demned and  forfeited  to  the  government  nf  the  United  States 
and  sold  and  became  a  complete  loss  to  the  owner. 

Tlie  shot  ifuns  were  worth  !?55  each,  and  the  rifies  §26  each.  K.  i."iii.\ 

*  lilM.  'MM. 

After  the  seizure,  one  of  the  quartermasters  i'rom  the  "  Rush  " 
was  put  on  board,  and  the  vessel   was  ordered  to  proceed  to  .,     ,|., 
Sitka,  instead  of  whicli,  liowever,  she  came  to  Victoria.  lin.  vj. 

It  appears  that  some  of  the  hunters  liad  hidtlen  two  or  three 
guns  which  were  left  on  board. 

On  the  way  out  of  the  sea,  the  schooner  lowered  three  Iwats  i;.  rns,  li,,,.  i. 
40  and  took  50  seals. 

Up  to  the  time  of  seizure  the  vessel   liad  experienced  fair  '*• 
weather,  though  there  were  some  rough  days.     It  took  five  or 
six  days  to  get  ouf     f  tlie  sea  and  during  all  tliat  time  the 
weather  was  fine. 

135 


lilM    I'll  .ill. 


'.       \- 


If.  77"', 

lilD-  IIMIII. 


n.  77!) 

liiii'  III. 


|{.  I.MT, 

III':    L-. 


186  THE    PATHFINDER. 

The  (lay  on  which  the  "  ruthlniilor  "  was  Hoizod  is  described 
by  IVissett  as  a  ".splendid  day,"  and  the  sclioonor  at  that  time 
was  located  among  an  uniisnally  largo  (luantity  of  seals. 

This  is  corroborated  by  Byers,  one  of  the  liunters  on  board 
tlio  vessel  at  tlie  time. 

Legal  and  other  expenses  were  also  incurred  in  connection 
with  the  preparation  and  presentation  of  the  claim,  prior  to 
the  appointment  of  this  Commission. 

Ili-r  Britannic  Majesty  claims  the  following  damages  as 
resulting  from  the  premises  :  10 

l''(pr  illi(,',il  Iminliiij;.  s,;in  !i  Mild  ainst  (if  vcsmI i^L'.dOII  (K) 

7 -^hct  trnnxat  .s.-M.-iifli IWi  (H) 

4  rilli's  iit -sal  cai'li 1114(10 

Slii|.'..  |.a|iirs 25  00 

.\"i4  skills  M'izi'd,  at  .■jll  caili !I,H!M  IK) 

l.i-Kal  i\|ii'iisi> aril)  (Ml 

Tiiiic  ami  i'\|iciisft4  cif  i.wnci- •JH)  (M.I 

Ksliiiiatnl  calili  if  scImiihiim'  imt  iiili'rfi.|i'il  witli  (5  Imats 
a  aiirl  stern  iiiiat  sialinj;  fruiii  L".i|li  .ruly  tu  l.'itli  .Si|,- 
t.'lilliir,  iiulu»i\>'|  L'OL'I  sUins  at  ■•'ll  .•acli L'L'.L'IM  (III 

.■*:u,i;i!2  iM)  20 

Iiitiii'st  111!  all  till'  alnivf  itc'iiis  at  tin-  rate  of  7  iht  cunt  fimii 
ilati'  nf  liiss  inifil  payiiiiiit. 


1.  *i 


1889. 


Til  10  "l?LA('K  DIAMOND. 

Cl-AIM    Xo.    15. 


■I 


■  i: 

.     .i 


Tlic  "  l?lu(k  Diimioml "'  \va.s  a  l?riti>ili  rcliooncr  of  82  tons 
I'onistort'd  at  Vitforia.  At  tho  date  of  the  soizure  hereinafter 
iiieiitioiioil ;  she  was  owni'il  and  registered  iti  the  name  of 
Morris  Moss,  having  heen  convoyed  to  liini  hy  bill  of  sale  duly 
registered  and  dated  the  10th  Xoveniher,  1888. 

In  tlie  spring  ot  18S|i  she  was  fitted  out  tor  a  sealing  voyage 
10  to  Mehring  Sea  ;  her  master  for  that  voyage  was  Owen  Thomas, 
and  mate.  Alexander  (JanU  ;  she  carried  10  canoes  and  one 
boat.  She  had  jirovisions  sullieient  to  last  till  the  latter  end 
of  October,  and  was  in  every  way  e(inipped  for  a  successful 
voyage. 

The  schooner  entered  Bchring  Sea  on  the  6tli  and  had 
her  lirst  sealing  day  on  the  ItUh  July;  on  that  day  slio  took 
76  seals. 

On  the  11th  July,  between  12  and  1  p.m.,  she  was  seized  by 
the  United  States  revenue  cutter  "  Rush"  being  tiion  about  2(t 
20  miles  from  the  nearest  land  and  being  at  lat.  5t)'22  X.,  long. 
17(  25  W. 

Owen  Thomas  describes  the  .seizure  as  follows  : — 

At  the  time  the  cutter  was  sighted  the  boats  were  all  out, 
but  they  were  all  in  before  tlie  cutter  got  alongside  ;  "they 
saw  the  cutter  just  as  well  as  I  did,  and  they  made  for  the 
schooner  right  awaj' "  The  boats  took  5a  seals  that  day  ;  it 
was  a  good  sealing  day  ;  "'  they  would  have  luid  100  more,  I 
believe,  if  they  had  been  left  alone.  It  cleared  up  nicely.  It 
was  thick  as  could  be  all  the  morning."  We  were  carrying 
30  the  Hritisb  tiag  at  the  time  of  seizure. 

(J.  "What  took  place  when  you  were  boardci' ? 

A.  "Well,  he  came  alongside,  and  he  says  »  .  me,  'Well, 
('aptain,'  he  says,  '  I  have  caught  yon  right  in  the  act.'  Says 
I,  •  Whats  that  " ''.  Says  he,  '  Catching  seals  '  '  Well."  says' 1, 
'  that  is  what  I  am  here  for,'  and  he  jumped  on  deck  and  he 
asked  me  to  show  my  papers,  so  I  did,  and  ho  wantetl  to 
take  them  away,  and  T  wouldn't  give  them  to  him  ;  he  went 
on  deck  and  waived  his  handkenhief,  and  the  cutter  came 
along  again,  and  another  boai's  ere  v  and  another  otHcer.  and 
4(j  he  went  aboard,  and  he  came  back  again.  Then  he  orilered 
the  skins  taken  out  of  the  b.. 'Id,  the  70  1  had  salted,  and  he  went 
aboard  there  again.  Then  he  came  back  and  the  master  of 
arms  with  him.  lie  asked  me  again  for  the  papers;  sa,\s  1, 
'  I  will  show  them  to  you,  3-ou  can  copy  them  otf,  but  I  shan't 
deliver  them  to  you.'  lie  says,  '  Vou  must  give  them  to  me ; ' 
says  I,  '  I  won't  give  them  to  you,'  and  he  told  the  master  at 
arms  to  bust  the  locker,  and  so  he  did." 

They   took  the   70   salted  skins  and  two  sacks  of  salt,  and 
left  the  seals  killetl  that  day  on  the  deck.     They  then  put  a 
50  man  from  the  "  Rush"  on  board  and  told  the  master  to  proceed 
B  s— 18  137 


I!.  lsi:i, 

lini.  (111. 

i;.  17711, 

liiii   to. 
If.  I'.P'.Kl. 

I!.  1.S..II. 


I!,  iriiv, 

It.  17711. 


It.  17i;7. 
lilli'  IS. 


I!.  1.SII4. 


U.  17(17. 
liiii'  (III. 


I!.  17iis, 
line  111. 


I!.  17lis. 

liui'  1."). 


I  ' 


138 


THE   BLACK    niAMONI), 


K.  170!t, 

lillr  1. 


I!,  isol. 


li.  isj.-i, 
lillr  r.4. 


to  Sitka,  who  told  tlioni  it'thoy  wanted  tho  vessel  lit  Sitka,  to 
jiut  a  crew  aboard,  and  they  |itit  mie  man  aboard  ;  then  the 
eutter  left.  Tiie  master  did  not  jiroeeed  to  Sitka  ;  he  wa.-*  told 
there  was  a  British  man-of-wnrat  Ounalaska,  and  ho  wont  there. 
The  next  day  was  t-alm  and  he  eould  not  move,  eani^ht  al)oiit 
11  seals  from  the  vessel  that  day.  They  did  not  lower  a  eanoe 
after  they  were  seized,  except  to  pick  np  those  il  seals;  tliere 
were  plenty  of  seals  around  the  vessel  when  they  killed  tho  11. 
Four  days  after  they  were  seized  they  reached  the  bay  outside 
Ounalaska ;  they  went  there  without  losing  any  time.  JQ 

The  master  further  testifies  : — 

•'I  had  been  told  there  would  be  a  British  man-of-war 
there,  and  I  wanted  to  get  some  satisfaction  before  I  left  the 
sea  about  their  seizing  my  vessel.  I  couldn't  get  to  Ounalaska, 
the  wind  died  away  right  in  the  bay  there,  ind  I  ascertained 
from  a  schooner  coming  out  that  there  was  no  British  man-of- 
there  ;  then  I  went  right  out  of  the  sea  that  day  and 
proceeded  to  Victoria." 

The  Indians  told  the  master  that  if  he  did  not  go  to  Victoria, 
they  would  i)Ut  the  "Kush's'"  man  out  of  the  wa}',   so  he  went  oq 
to  Victoria  to  save  trouble. 

The  ofKcers  from  the  "  Rush  "  had  taken  away  the  Indians' 
spears;  and  guns  were  on  board  but  the  Indians  were  not 
good  shots,  and  not  accustomed  to  using  guns,  and  tho  means 
were  not  on  board  of  making  more  spears. 

The  stern  boat  would  have  gone  out  in  tho  afternoon  of  the 
day  of  the  seizure,  as  it  would  have  on  any  good  sealing  day. 
The  duties  of  the  deck  hands  would  not  have  prevented  them 
from  going  out. 

Captain  Shepherd's  report  of  the  seizure  states  that  on  duly  30 
11th.  lat.  00-22  N.  long.  170-2  i  \V.,  the  west  end  ot  St.  George 
Island,  bearing  X.  K.  I  X..  20  miles  distant,  "  I  seized  the  British 
"  schooner  vBlack  Diamond'  of  Victoria,  B.C.,  Owen  Thomas, 
"master,  for  violation  of  law,  section  r.t56.  Revised  Statutes 
"of  the  United  States. 

"She  entered  Behring  Sea  on  .luly  3rd,  and  when  boarded 
"was  found  to  have  on  board  7(!  fur  seal  skins  in  salt,  iiml  55 
'■^  ildid  far  seals,  iwtnlli/l.lUnl,  mnl  md  s/.iiinnl;  mi  deck,  nil 
'■'■  iif  leldcli  the  mp'ain  reported  to  hire  tnkni  Juli/  }()  (ivil  W. 
"Her  crew  consisted  of  five  white  men  all  told  and  20  Indians,  jq 
"  in(;hiding  one  woman,  of  the  Ahauset  tribe  of  Vancouver 
"  I.sland.  When  boarded  Captain  Thomas  declined  to  exhibit 
■' or  surrender  the  vessel's  i)apers,  and  Ijirut  Tuttle  (by  my 
"order)  was  obliged  !o  break  open  a  locker  in  the  cabin  to 
"  obtain  possession  of  tiu'm. 

"The  fur  skins  and  arms,  viz.,  a  rifle  and  20  Indian  spears, 
"  were  taken  on  board  the  '  Rush  '  for  better  security,  and  I 
"  placed  the  vessel,  oHicers  and  crew  in  charge  of  seaman  J. 
"llankanson  of  this  vessel,  with  instructions  to  proceed  with 
"  her  to  Sitka,  and  on  arriving  at  that  port  to  report  to  the  .-,0 
"  United  States  District  Attorney  of  the  District  of  Alaska, 
"and  to  deliver  to  him  the  vessel,  the  [lersons  ot  Captain 
"Tiionias  and  mate  Gait,  and  to  set  the  crew  at  liberty." 

Captain  Shoiiherd  in  his  evidence  given  at  Sitka,  states  as 
follows: — 

"  When  the  schooner  "  Black  Diamond  ""  was  first  sighted 
she  was  ^  hove-tu'  und' r  her  J'"r<S'iil,  iinth  one  or  inore  cmioes  in 


30 


'     11 


TIIG    BLACK    DIAMOND. 


189 


tfif  wafi'i;  supposed  to  he  hiintintj  for  scnl.  As  we  iqiitroiidit'd 
will'  took  up  lier  uunoes,  iiiiulo  all  Huil  uml  stood  l>y  tlic  wind 
to  the  fioiitli  imd  west.  The  Ctiptain  (liclinnl  to  ohej/  our  onler 
to  ^he<ive.-to'  or  stop,  until  our  (jiiiis  wrrr  pr'paral  for  runinug 
out  to  fire  on  him,  and  wlun  hoanled  the  Oipliiln  relusrd  to  ijiri'. 
up  or  fxhy  it  his  vessel's  papers,  nm!  we  uure  ohlitjed  to  Inntlc 
open  a  locher  in  the  cahin  to  ol)tain  possession  of  thrm." 

Tho  Heal  s»kiim,  Hjioars,  lifloa  and  otlier  articles  removed  from 
the  "  Black  Diamond "  were  taken  to  Sitka  and  there  |in>- 
10  coeded  againnt  at  the  instance  of  the  Uinted  States  District 
Attttrney,  and  such  i)roceedinas  were  had,  that  they  were 
afterwards  condemned  and  forfeited  to  the  Government  of  tho 
United  States  and  sold  and  became  a  comiileto  loss  to  tho 
owner. 

Legal  and  other  expenses  were  also  incurred  in  the  prepara- 
tion and  presentation  of  tho  claims  prior  to  the  appointment 
of  this  Commission. 

On  account  of  the  illegal  seizure  the  voyage  of  the  "  Black 
Diamond ''  was  completely  broken  up. 

20      Her  Britannic  Majesty   claims  the   following  damages  aa 
resulting  from  the  premises  : — 

IllegilllKiiiriliiit;,  stMii'ili  ivii  1  :iiri'st  iif  vessil .'>i2,0<l(HHJ 

7t)  skins  iietniilly  si'izcil  lit  Mil       s;tli  (K) 

20  siHiiia  lit  *< tHl  nil 

1  ritic   :t(i  im 

Slii|i's  i)ai«Ts    i"  :k) 

IHviV.sliill aVMH) 

ri-rsuiial  i'\|Kiisc  and  ti'imlilc  of  iiwmi- L'llii  mi 

Ivstiiiiatid  calili  if  si-li(iciiiir    not  iiitcTfin-il    willi     (in 
•'0  uaiiiii's  ami  inic  l»iat  sniliii^'  fmni  lltli  July  to  l."illi 

Se|i:cnil«-r  iiu-l\isivci ;  li.MKi  skins  at  •■<li ;\s,'i{H>  (in 

•'?41,!MI1  IKI 

Inti'icst  III!  all  llii'  al«ivi'  items  at  tlir  rati'  nf  7  piv  iciil 
from  (late  <if  ln.ss  until  |iayni>'iit. 


it 


I 


■■{  iiti 


.\|.|..  p..  1117. 


lillr   Id. 

I!.  1S1.\ 
liin*  ."i.'i, 

1X17. 


II.  ISKI, 

iiii'  r 


!!.  1SI7, 


1880. 


THE  "LILY." 

Cl.mm  Nil.  III. 

Tlio  "  Lilv  ''  WHS  a  IJriti.-li  scImidiu'I'  rc<;isteiv(l  at  tlio  porf 
of  Victoria,  Britisli  Columbia.  Siio  luul  Ibnuurly  lioeis  known 
as  the  "Ait'ivd  Adams,"  l)iit  by  Onlcr  in  Cxmcil  datod  liSth 
March,  188S,  uiuh'r  tlio  I'rovisimi.sof  Section  21  of  tlio  Statr.to 
49  Victoria,  lier  name  was  i-liaiifjed  to  the  ''  Lily."  Ilcr 
tonnage  was  Gi)  tons. 

The  owner  waa  Morris  .\b)ss  and  lio  as  well  ii.s  the  master  10 
and  mati!  are  dead,  and  no  member  of  thecrew  could  be  found 
to  give  evidence.  The  statement  of  facts  relating  to  the  seizure 
was  brought  to  the  attention  of  tln'  Commission  thrnngh  the 
means  of  a  statutory  declaration  made  by  Morris  Mo.s.s,  the 
owner,  on  the  lOtli  November,  188!',  and  the  further  declara- 
tion of  John  Reilly,  the  master  of  the  "Lily"  at  the  time  of 
seizure,  dated  11th  September,  188!*,  together  with  extract 
from  the  oflicial  log  of  the  seizing  cutter  and  other  document 
tary  evidence. 

The  "  Lily"  carried  a  crew  of  5  whii  •  and  25  Indians.  20 

On  the  20th  May,   18S!>,  she  cleared  ^  Custom  house, 

Victoria,  for  a  fishing  and  hunting  voyage  in  the  North 
Pacific  Ocean  and  Hehring  Sea.  She  entered  Behring  Sen  on 
the  25tli  July. 

On  the  titii  August,  1880,  whilst  slu'  was  in  the  sea,  being 
in  lat.  u5'2l>  N.;  long.  lOG'l.'i  \V.,  at  a  distance  of  about  (56 
miles  from  the  nearest  land,  tlie  United  States  revenue  cutter 
"  Rush  "  overhauled  the  schooner.  She  was  boarded  by  the 
Ist  lieutenant,  who  asked  how  many  skins  were  on  board, 
which  information  the  ma.ster  did  not  give  him.  The  officer  30 
then  stated  that  he  wanted  to  see  the  schooner's  papers. 

The  master  refused  to  acknowledge  his  right  to  seize  the 
schooner  tor  sealing  on  the  liigh  seas.  The  1st  lieutenant 
then  returned  on  liuard  tiie  "Rusli"  and  after  a  sliort  time 
came  back  accompanied  by  another  boat  of  the  cutter,  com- 
manded by  the  2nd  lieutenant.  Both  ollicers  came  on  board 
and  demandtd  the  surrender  of  the  schooner  and  asked  at  tlie 
same  time  for  the  ship's  papers.  This  the  master  refused  at 
first  and  then  the  Ist  lieutenant  said  that  unless  the  paiiers 
were  given  up  at  once,  he  would  take  them  by  force.  The  40 
master  then  yielded  and  handed  the  papers,  consisting  of  certi- 
ficate of  registry,  coasting  license  and  clearance,  to  the  ofKcer. 
The  lieutenant  then  ordered  the  boats'  crews  to  search  the 
.schooner  which  they  did  and  found  and  took  away  333  seal 
skins,  all  in  good  order. 

140 


Tile  seizing 
give  iiim  tiie  , 
Ih(  useless  for 
master  then  t( 
sacks  were  ti 
master  by  the 
of  which  were 
tlie  dcclaratioi 
seized  lor  a  \i 
10  was  then  ord 
where  she  arri 
the  evening. 

It  also  appei 
nway  at  the  sa 

The  seid  skii 
schooner  "  Lil> 
against  at  the 
and  such  proce 
condemned  am 
-0  States,  and  sub 
the  owner. 

Legal  ami  ot 
and  presentatio 
Commission. 

Her  Briti'.nni 
resulting  from  t 

\'«l    illriral   h. 

.Slii|.'>  |.a|.ci> 

-'."i  s|»'aiN  at  .s 

.'!.'i:t  ^1  al  .skins 

ILUvasiliai-i 

'rillli'  allil  iA|. 

I'^stilli.ltiil  rat 
NC-alillj;  111 


IlitciT.st  on  all 
fnilii  ilatc 


30 


TIIR   LILV. 


141 


Tli(>  H(>i//ni^  otlu'cr  iiImo  (luinaiiiKul  llml  tlio  iiiiiHtci'  .hIk^uIiI 
^ivo  iiiiii  till!  suit  oil  l>'>ar(l,  Hii_yiiif?  at  tlii'  hiuiio  tiiiu!  it  wuiiKl 
l)c  iiBoIoHH  tor  him  to  rot'usc,  as  lio  could  take  it  by  furcu.  TIk; 
iiiarttor  thou  told  him  to  <;o  ahead  and  hi'lp  irmisolf,  ami  two 
>-ackH  WLTo  taki'M  away.  T\vo  lottors  were  given  to  the 
mastor  by  tho  olHccrK.  One  wan  a  soalcil  letter,  the  content.-* 
of  which  were  unknown  to  the  masti'r  at  th(!  time  of  making 
the  declaration,  but  the  other  stated  tiuit  the  '•  Lily  "  had  been 
Heized  for  u  violation  of  the  United  States  laws.  The  schooner 
10  was  tlieii  ordered  to  Sitka,  but,  instead,  came  to  Victoria, 
where  she  arrived  on  the  1st  Sei)teml)er  at  seven  o'clock  in 
the  evening. 

It  also  aiipcars  that  the  spears  of  the  Indians  wore  taken 
away  at  the  same  time. 

The  seal  skins,  spears  and  other  articles  removed  from  the 
schooner  "  Lily "  were  taken  to  Sitka,  and  there  proceeded 
against  at  the  instance  of  the  United  States'  District  Attorney 
and  such  proceedings  were  liad,  that  they  wore  afterwards 
condemned  and  forfeited  to  the  government  of  the  Unitetl 
liO  States,  and  9ub8e([ucntly  sold,  and  became  a  complete  loss  to 
the  owner. 

Legal  and  other  expenses  were  incurred  in  the  preparation 
an<l  presentation  of  the  claim  prior  to  tlio  appointment  of  this 
Commission. 


I!.  1..  isii;, 
linr  I. 


;{0 


Her  Britannic  Majesty  claims  the   following  damages  as 
resulting  from  the  prenuses: — 

Kill  WUku]  lH«inliii|,',  M-iiRli  iiiid  aiTcst  iif  \c»Mrl  . ,        .     s  •_',IK|(|  nil 

Sliiii'>  |iii|icr.-i J."i  IKI 

2."i  sprars  at  -SI  r:iuli 1(Nmiii 

.•i:'.:i  ~.al  sKiiis  at  ><il ;i,ii(;;)  (Ki 

lirlyi-a's  c-liaixi'~ •.•"ill  (HI 

TillM'  and  CSIilllsi'iil    OWIIIT          'JIKIIKI 

Kstiiuatiil  ratcli  it'  srlicmin'r  not  iiitiTfiiril  wiili  i  TJ  cainK's 

M'aliiij;  I'linii  'Itlj  Aiif.'.  I<i  l.'iili  Sr|.t.  IL'."i7li -kius  at  "W.  L'S,;i:«l  (Kt 

s  :n,.")7t  (Ml 

Int. Tc.-I  nil  all  till' aK.M'  itiiii>  at  tin-  fate  of  7   |iif  criit 
frniii  dat"'«if  ln^>  until  payiiMiit. 


'  .•.'i'l 


1889. 


THE  "MINN IK." 
Claim  No.  17. 


i:.  I  \M. 
li ii;. 


i;.  I  till. 

lini'  IW. 


I!   1  i:w. 
lilli'  .">s, 


1!.  li:iii. 
lini'  70. 


i;.  1 1.;?. 


i;.  ii.Mi. 

llIM-  .'ill. 


I!.   IIIL'. 

lin.'  i:i. 


The  scliooniM'  "Mimiic"  was  owncil  hy  V'utor  Jac(>l)S(iii. 
She  was  a  now  vessel  liiiilt  at  Victoria  in  tiic  year  18Si)  ;  and 
rciristei't'd  as  a  British  vosscl,  (50  or  70  fcut  lonij;,  '20  feet  broati 
anil  6J  t'l.'ot  (loop.  Koitistcr  tonnage  4'.)'6i)  tuna.  Slie  was 
liiiilt  tiy  her  owner  ospoiialiy  fur  seal  hunting  and  wasj  in  every 
way  adapted  lor  that  biLsiness. 

Slie  was  titted  ont  hy  her  owner  in  1889  for  a  sealing  voyage 
to  liehring  Sea. 

.Fin'ohson  ijays  ho  internhnl  to  stay  in  Bchring  Sea  until  IQ 
lOtli  or  middle  of  Septondjer.  lie  had  stayed  there  the  year 
before  in  a  snndl  soliooncr,  and  in  the  "  Minnie,'"  being  a  larger 
ve.-<sel,  he  was  not  soared  with  tlic  weather  ;  he  had  provisions 
on  hoard  sufficient  to  last  him  until  the  middle  of  October. 
Iler  hunters  were  partioularly  good  men,  botli  the  Indians  and 
whites. 

The  schooner  sailed  for  BehringSea  on  the  26th  May,  having 
on  board  eiglit  canoes  and  two  sealitig  boats,  her  t'rew  consisted 
of  5  white  men  and  10  Indians.  On  the  way  up  to  the  sea 
tlioy  caught  15;i  seals.  She  entered  liehring  Hea  on  the  27th  20 
June  and  hunted  until  the  lotii  .fuly,  up  to  which  time  she 
had  418  seals  iinhiding  those  i-aught  on  the  way  up  to  Behring 
8ca.  On  that  day  in  latitude  So'll,  N.,  and  longitude  1()5'55 
W.,  she  was  goi/.ed  hy  tiie  United  States  revenue  cutter 
"Rush." 

The  seal  skins  on  board  ami  two  guns  and  a  musket,  were 
taken  ;  also  20  Indian  spoais,  a  quantity  of  salt  and  the  ship's 
papers. 

A  man  from  the  •'  Rush  "  was  placed  on  board  the  vessel 
and  she  was  ordered  to   inoooed  to  Silka,  and  on  arrival   to  30 
report  to  the  United  States  District  Attorney  for  Alaska,  and 
deliver  the   master  of  the  vessel  and   the  mate   Magncsen,  as 
prisoners  to  him. 

Captain  -Jacobson,  describes  wiiat  he  did  after  liio  seizure 
as  follows: — 

"Q.  After  being  seized  did  you  make  uji  your  mind  to  go  to 
Sitka  as  you  had  boon  ordered  to'.'     A.  No. 

"Q.  \Vliat  did  you  decide  to  do?  A.  Well,  we  talked  the 
nnitter  over,  with  Magncsen  and  the  other  crew,  and  we 
decided  like  this:  I  had  just  built  the  vessel,  she  stood  me  40 
about  eight  or  nine  thousand  dollars  ;  if  I  had  gone  to  Sitka  1 
would  have  lost  my  vessel:  If  1  had  gone  to  V'icoria  I  would 
also  have  lost  her.  So  wo  concluded  to  stay  lu're  to  get  some 
more  seals  and  tlior,  go  liome,  and  1  said  it  I  get  took  again, 
1  am  just  as  well  olf  as  I  am  now,  so  wo  made  up  our  minds 

142 


THE    MINNIE. 


14:^ 


lo  go  ill,  in  somo  oonior  out  of  tlic  v;ny  wliorc  tho  m.aii-ot-\viir 
woiilil  not  lind  lis  iigaiii,  and  it  lie  did  I'lid  ns  I  would  l)ein  tlio 
aanit'  fix  I  was  bot'ore  ;  no  worse. 

"  Q.  You  had  iiotliiiig  more  to  loao'r  A.  Notiiing  Uiorc.  I 
Iiad  lost  it  already  if  1  went  to  Sitka. 

'■(J.  You  expected  of  coiuvo  to  be  arrested  at  Sitka?  A. 
The  young  man  wlio  liaii;led  me  the  doeiiments  told  me  and 
Magnesen,  I  don't  think  I  eould  :  ^ad  Knglish  at  that  time, 
what  wo  did  not  iiiuU'rstand  he  read  it  for  us,  that  we  should 
10  be  arrested  as  soon  as  we  landed  in  Sitka  and  the  persons  and 
papers  to  be  handed  ovir  to  the  niiirshal. 

"  Q.  You  d'(i  not  earo  to  lie  arrested?  A.  I  did  not  eare, 
mj'self,  for  anything  in  those  days.     1  was  not  going  to  give  up. 

"(J.  For  what  part  of  Hehring  Sea  did  you  make?  A. 
Well,  lo  till'  north-east,  and  the  safest  corner  i  thought  to  be 
out  of  the  way  from  being  eaught  again. 

'•(i.  Had  you  ever  been  there?  two  years  before,  you  had 
been  to  Bcbring  '.^ea?     A.  Two  years  liefore,  yes. 

"Q.  lladyon  beiMi  in  that  eoriier  ?  A.  Xo,  it  was  a  great  deal 
20  out  of  the  way,  and  I  thought  the  man  of  war  had  no  busi- 
ness round  there. 

"Q.  Did  you  expect  to  iiiid  many  seals  there?  A  Well, 
we  hunted  round  an<l  picked  up  a  few  straggling  ones  there. 

"  Q.  You  remained  until  what  time?  A.  About  the  17th,  I 
think.     We  came  out  of  the  I'ass  in  August. 

"  Q.  And  in  the  meantime  you  sealed?  A.  Yes,  up  to  a 
few  days  before  we  came  out,  we  sealed  right  along." 

Further  on  he  adds : 

'•  Q.  How  did  you  manage  to  seal  after  you  had  been  seized  ? 
3')  A.  Well,  1  had  some  more  guns  and  I  made  some  new  s[iears  : 
right  the  next  morning  I  had  two  ready  before  daylight  and 
made  the  rest  during  the  day. 

"  Q.  llow  many  guns  had  you  left?  A.  That  1  do  not  re- 
member. 1  may  have  had  ten  guns,  but  1  cannot  say  for  cer- 
tain I  don't  remember  how  niaiiy  1  might  have  had,  one  foi' 
each  boat  or  so."' 

Theodore  Magnesen,  mate  and  navigat<ir  on  hoaiil  the 
'•Minnie,"  alter  descriliiiig  the  voyage  to  Hehring  Sea  and  the 
circumstances  up  to  the  date  of  tlie  seizure,  says: — 

■10  -'  ,\fter  the  seizure  we  talked  the  matter  o\i'r.  and  we  came 
to  the  conciusioii  that  we  were  not  going  to  leave  liehiing  Sea 
unless  we  wi're  towed  out. 

"(j     l)id  voucnieto  the  I'oncUision   ot'   remaining'   on    the 


i;.  lit;!. 

liln'JI. 


i;   1  i:i7, 
III!"  hi 


sealinu"  a'r.)Uiul  where  you  weri 
'         .1 


A.    X. 


stccrt'd  towards 


the  pass  until   evening,  and  ni  the  evening  we  went  up  to  the 


iilhwanl  and  stei'ivd  to  the  iii'li-ea 
"  We  didn't  seal  al'terwar.ls  on  ihed; 
two  davs,  l)"fore  seizure  w-.  cautflit  the  liii>'ii'est  caleli  we 


;("_  -tP  T^*  1^  -Tf  -TT 

The  day,  i;   i  ci 


i\  oi  scixuri^ 


had,  74.      It  was  the  biii'irest 


{(  li  ol'  sea's  wt'  made 


.")0       "Q.  On  the  tlay  lolh 
A.    Went  up  iioithwan 


o\\  uig  sei/iire  wliere  did  you   proceei 


it  di 


th 


•1' 


.1  call 


(1   tl 


lev  lowerei 


le  next   inormng.  and  fliey  wen'  out  with  their  guns,     (a] 


th  lb 


tain 


Jaeol 


)son  was  tixmg  up  spears  wlien  thev  were  out. 


Th 


Indians  wen^  not  out  very  Ion: 


'liev  came  liac'k  ayain  ;  i\n\\ 


I'lii 


lid  not  lind 


;inv  seal 


Old  tlu'v  were  ii.'t  niiicii  use  with  th 


shot-guns.     They  were  good  hunters  with  -pcai> 


And  further  on,  he  says; 
"  When  order 


ed  away,  we  were 


about  latitude  55    in'  .Vorth 


\iid   about    107   longitude    West.      Tlu'ii    we  steered   towanls '' 


li.  1 1.1 


GO  I'liiniak   Pass  for  probably  twenty  m 


He: 


1   1(1 

,;■■;« 

i 


i 


'I- 


'il 


>:: 


144 


THK    MINNIE. 


Iiii,  i;ii. 
I!.  1117, 

lllM'  IIS. 

I!.  1  l.".ii. 
liiii'-.'ii. 


"  Q.  Oil  the  same  day?  A.  Yos,  until  evening;  we  kept 
going  to  tlie  pass  niitil  evening,  then  we  steered  up  here  (indi- 
cating) to  the  north-east,  and  the  next  day  we  lowered  boats 
and  got  a  few  seals,  I  i;aniiot  say  how  many,  probably  18  or 
20,  and  then  we  worked  up  here,  and  done  the  rest  of  our 
sealing  by  Anak  Island. 

"Q!^  (live  the  latitude  and  longitude.  A.  About  55°  40' 
latitude  North,  and  longitude  West  163"  40'.  We  saw  Anak 
Island  on  several  occasions,  and  it  was  bearing  north-west  to 
west,  '20  to  40  miles  oif.     Tliat  is  wliere  we  done  our  sealing."  10 

He  proceeds : 

"  We  came  out  of  the  Pass  on  the  17th  of  August,  when 
we  quit  sealing,  I  should  think,  on  the  12tli.  We  remained 
always  about  the  same  phuu'.  viz.,  near  iVnak  Island  ;  never 
left  that  place  until  we  started  forhome.  l''ronithe  15th .Inly, 
until  we  left  Bebring  !?ea,  we  took  483  seals.     #     *     * 

"  Q.  Did  you  find  good  sealing  ground  near  Anak  Island, 
where  you  remained'.'     A.  No,  sir,  seals  were  scarce. 

"Q.  Why  did  you  leave  to  come  out?     A.  AVell,  the  In- 
dians refused  to  work  ;  in  ia';t,  that  was  the  second  time  they  20 
refused  to  work. 

"  Q.  Why?  A.  There  were  no  seals  to  sjieak  of,  and  they 
were  in  fear  of  coming  in  contact  with  the  cutter  again. 

"  Q.  What  kind  of  hunters  had  you  ?  A.  We  had  very 
good  hiint(}rs,  we  had  the  pick  of  two  tribes  :  the  Xitnat 
and  some  of  the  Dofljrei'  (.'ove  tril)es.  The  white  men  were 
aieo  good  huiirers. 

"  Q.  For  what  time  did  you  intend  to  remain  in  Behriiig  Sea  ? 
A.  1  should  think  we  would  have  remained  uut^il  the  14tb 
or  ir.Ji  September.  3u 

'■  Q.  Was  there  any  talk  when  you  lett  lor  i^ehring  Sea  as 
to  the  time  you  would  have  remained  ?  A.  The  talk 
between  me  and  Jacobson  was  thai  we  were  going  to  have 
2000  seals,  and  that  we  would  not  come  out  before  we  got 
them. 

"(J.  Was  there  any  mention  ol  tiie  catches  having  been  made 
in  I'eliiiiig  Sea  in  September  the  previous  year?      A.  (.Captain 
•lacolisoii  hail  stayed  t^ome  time  in  Sc}iteniber  the  year  before. 
lie  came  out  .«oine  time  in   September,   and   tiie   next  year  I  40 
went  as  master,  I  came  out  in  Se|itember. 

••  Q.  Did  you  tiud  any  seals  in  September  ?  A.  Yes  sir,  I 
done  well  in  Se]itcml)er  ;  I  got  over  HOO  seals  in  Sejitenibcr. 

"  (i.  Well,  it  ynu  had  not  been  ordered  from  Dehriiig  Sea, 
would  you  have  gone  towards  Anak  Island  ?  A.  No,  sir,  we 
would  not  have  sealed  there,  it  is  not  a  good  sealing  ground. 

"  (I.  Where  would  yon  have  gone  ?  A.  We  would  have 
remained  there  mi  the  scaling  groniid  about  oo'  Id'or  1.')'  lati- 
tude N.  and  abmit  107'  longitude  W. 

"  (}.  That  is  well    known   to    lie    ;i    good    scaling  ground  ?  50 
A.    ^'es,  sir,  Captain  .laeobsnii  bad  beci  there  two  years  before, 
anil    be    knew    :ill    about    it.    We    liad    very    line  weather  in 
.August.'' 

Further  on  be  says  : — 

"  The  seals  wci'C  very  scarce  :  be  lnok  a  small  catch  evcrs' 
ilav.  and  WKi  wurkcd  scry  bard  to  gel  them." 

.laeobson  says  ilicy  also  got  eight  sea  otters. 
Captain  Shephenl  in  his  report  to  the  secretary  ol   the   trea- 
sury, dated  August  !llh,  18«it,  says  :— 

"  .Inly  the  1 'ith,  I  sei/cd,  latitude  TiT)     I  1'  N'orlb,    luiiyitude  50 


30 


lor 


w 


st    I'lll 


niinak  isiani 


(I.  b 


S.  Iv  by  E. 


IHB  MINNIB. 


145 


52  miles  distant,  the  British  schooner  "  Minnie  ",  Victor 
Jacobson,  master  and  owner. 

"  She  had  been  in  Behring  Sea  since  the  27th  of  June  and 
was  found  to  have  418  fur  seals  on  board,  about  200  of  which 
the  captain  admitted  had  been  taken  in  Behring  Sea. 

"  I  placed  the  vessel  and  her  officers  in  charge  of  seaman 
Swanston  ( if  this  vessel  with  instructions  to  proceed  forthwith 
to  Sitka,  and  on  his  arrival  at  that  port  to  place  them  in  charge 
of  the  United  States  District  Attorney  for  the  District  of 
10  Alaska,  and  to  set  her  crew,  viz.:  3  white  men  and  16  In- 
dians, at  liberty." 

The  same  fact  is  entered  in  the  log  of  the  "  Rush  ". 


The  seal  skins,  spears,  and  other  articles  removed  from  the  r.  uw, 
"  Minnie  ",  were  taken  to  Sitka  and  there  proceeded  against ''""  *"' 
at  the  instance  of  the  United  States  district  attorney,  and  such 
proceedings  were  had  that  they  were  afterwards  condemned 
and  forfeited  to  the  Government  of  the  United  States,  and  App.  B.  270. 
sold,  and  became  a  complete  loss  to  the  owner. 

20  Legal  and  other  expenses  were  also  incurred  in  preparing 
and  presenting  the  claim  prior  to  the  appointment  of  this 
Commission. 


Her  Britannic  Majesty  claims  the  following  damages   as 
resulting  from  the  premises  : 


30 


Fur  illegal  iHiiinliiig,  Hwircli  and  iincst  of  scliooiier 8    2,(«K)  00 

20  BiH-ai.s  at  ?» 

1  b''"i 

1  B'l" 

Sliip'u  pa|iois 

llclyt'jx'H  t'liargen 

Tiuifand  expriwo  iif  (iwmr 

420  skins  act\mlly  scizcil  at  $11 


App.  B.  290 


60  00 

55  00 

10  00 

25  00 

250  00 

200  00 

4,i;20  00 


Kstininti'd  fatcli  if  sclnHinir  lia<l  nut  been  intrrfi-icd  wiili 
(H  caniM's  and  2  Imats  fnini  15tli  Jidy  tu  15th  Hrptrni- 
Ut,  li'ss  4H;t  skins  actually  takin),  3(»1"  skins  at  SU . .    3;i  IS?  (HI 


.¥40,407  i"i 


Inti'ii'st  cm  all  till' al)<>vi' itiMns  at  the  latr  (if  7  per  cent  frmn  datci.t  l.ws  until 
pnynient. 


ill 


Om 


ii 


BB— 19 


1889. 

THE  "TRIUMPH." 

Claim  No.  18. 


Ai.p.  li.  -2- 


K.  141'.l, 
line  »>. 


line  45. 


K.  Hl'.i. 


K.  H'.'o, 
line  10. 


K.  1  Ijo, 
liiu'  41. 


The  scliooner  "Triuiiiiih"  was  a  British  \-e8.sei  of  100  tons 
register.  Slio  was  purchased  in  Nova  Scotia  in  1887,  and 
cost,  laid  down  at  Victoria,  the  sum  of  §8,250.  After  arrival 
at  that  port  she  was  coppered  at  a  cost  of  $1,117. 

In  1888,  she  went  upon  a  sealing  voyage  to  the  North 
Pacific  Ocean  and  Behring  Sea  and  made  a  catch  of  2500  skins, 
1803  whereof  were  taken  in  Behring  Sea.  10 

The  outfit  for  the  season  of  1889  was  obtained  partly  at  San 
Francisco  and  partly  at  Victoria,  the  expenditure  at  the 
former  place  being  §2,975.19,  and  at  the  latter  §1,428.58. 
Advances  were  made  to  the  crew,  amounting  to  §1,692.51. 
The  total  investment,  therefore,  which  was  at  stake  in  the 
sealing  voyage  of  1889  was  §15,425.23. 

In  outfitting  it  was  the  intention  that  the  voyage  should  last 
as  long  as  the  master,  Daniel  McLean,  could  possibly  remain 
in  the  sea. 

On  that  point  the  evidence  of  Mr.  Baker,  one  of  the  owners  20 
is  as  follows  : — 

"  Q.  I  believe  that  you  did  outfit  the  vessel  in  the  very  best 
way  ?  A.  Yes,  we  gave  her  everything  that  it  was  possible 
to  give  her. 

"Q.  Did  you  give  him  any  instructions  as  to  the  time  that 
he  should  staj-  in  the  sea?  A.  Well,  of  course,  I  am  not 
really  positive  as  to  instructions,  I  was  simply  one  of  the 
partners  managing  the  affairs  of  the  fcchooner,  and  a  good 
deal,  iioce.-isarijy,  would  be  left  to  McLeai.'s  discretion  because 
it  was  he  that  got  me  to  go  into  that  venture.  Naturally,  I  30 
would  be  guided  by  his  report  as  to  the  circumstances  when 
he  was  to  return.  But  it  was  distinctly  understood  between 
him  and  myself  that  he  would  remain  there  to  the  very  last 
of  the  season  that  ho  could  catch  .wals,  so  as  to  ascertain,  if 
possible,  hmv  long  that  season  really  did  and  could  last. 

"Q.  Was  there  any  understanding  at  all  to  that  effect  ?  A. 
Yes,  he  was  to  remain  there  until  late  in  September. 

"  Q.  That  was  fully  understood  ?  A.  Fully  understood  be- 
tween him  and  me.  In  fact  ho  wanted  to  know  something 
about  what  became  of  the  seals  after  they  left  the  sea,  includ-  4q 
ing  the  I'ribyloff  Islands.  He  wanted  to  go  a  little  voyage  of 
discovery  to  a  certain  extent,  and  trace  them  and  probably  do 
some  sealing  at  tin'  same  time. 

"  Q.  It  was  mentioned  between  you,  or  understood,  that  he 
could  stay  there  rmtil  pretty  late  in  September?  A.  Oh,  yes. 
The  previous  year  he  bad  come  back  on  the  10th  of  Septem- 
ber, and  lie  hiid  evorj-thing  on  board  that  would  enable  him  to 
stay  there  until  the  end  ef  the  year  for  the  matter  of  that. 

"Q.  In  lfi89?     A.  Yes. 

146 


THE   TRIUMPH. 


147 


it;:!  ill 


"  Q.  He  had  an  amount  of  provisions  to  get  home  in  the 
latter  part  of  September?  A.  Oh,  yes,  to  the  end  ot  the 
year." 


hi 


linu  51!. 


The  "  Triumph  "  carried  a  crew  of  32  white  men,  including  H.  i42-', 
the  master,  eight  hunting  boats  and  the  stern  boat. 

She  cleared  in  the  spring  of  1889,  for  a  sealing  voyage  to  the  u.  1418. 
North  Pacific  Ocean  and  Behring  Sea,  and  entered  Behring 
Sea  on  the  4th  July  anJ  commenced  sealing.     Between  that  K.  u;m, 
date  and  the  11th  she  took  72  seals.     On  the  11th  uf  July, 

10  when  she  was  in  Lat.  56-05  N. ;  Long.  171'23  W.,  at  about 
8.30  a.m.,  she  was  hailed  by  the  United  States  revenue  cutter 
"  Rush,"  a  boat  was  lowered  from  the  cutter  in  command  of 
Lieutenant  Tuttle,  who  boarded  the  schooner,  demanded  the 
papers  of  the  vessel  and  after  reading  them  proceeded  to 
search  the  vessel.  Finding  no  evidence  of  seals  on  board,  the 
officer  informed  the  master  that  orders  had  been  issued  by  the 
Secretary  of  State  under  the  proclamation  of  the  President,  in- 
structing the  commanding  officer  of  the  revenue  cutter  to 
seize  all  vessels  found  sealing  in  Behring  Sea.     The  officer 

20  also  said  that  if  he  should  again  find  the  schooner  with  skins 
on  board  that  he  would  seize  and  confiscate  the  vessel  and 
catch.  He  further  stated  that  ho  had  already  seized  the 
"  Black  Diamond  "  and  that  she  had  been  sent  to  Sitka. 

Under  terror  of  the  threats  and  action  of  the  officer,  the 
master  immediately  discontinued  his  voyage  and  proceeded  to 
Victoria,  arriving  there  on  the  28th  July. 


There  is  a  special  question  arising  in  this  case  to  which 

reference  should  bo  made.  Twenty-two  shares  of  the  schooner 

were  registered  in  the  name  of  one  Daniel  McLean,  who,  it 

30  was  alleged  was  naturalized  as  an  United  States  citizen,  in 

the  year  1882. 

This  becomes  immaterial,  us  it  was  proved  by  the  evidence 
for  Great  Britain  that  he  had  been  re-naturalized  as  a  British 
subject  before  ho  acquired  an  interest  in  the  Triumph. 


R.  1955, 

lini'  ."id. 

R.  v.m, 

line  15. 
R.  1957, 
linu  35. 


Another  question  raised  was  that  before  the  commencement 
of  the  season  of  1889,  Baker  had  entered  into  a  contract  with  k.  i  tu2, 
Liebes  &  Co.  to  sell  his  catch  at  §0.25  a  skin,  and  it  is  claimed  ""' 
that  no  more  can  be  recovered.     A  sufficient  answer  will  be 
found  in  the  fact  that  the  contract  with  Lieljcs   &  Co.  was  i^  i.(.-,;<, 
40  subje(!t  to  certain  conditions  which  were  of  an  onerous  nature,  j{"i,"i4.-,4 
namely  the  sending  of  a  steamer  to  some  point  near  Behring 
Sea,  to  take  a  transfer  of  the  "Triumph's"  catch  and  bring  it 
to  Victoria.     This  condition  was  made  necessary  through  fear 
of  seizure.     It  would  therefore,  be  manifosfly  unjust  for  the 
United  States  Government  to  claim  the  benefit  of  a  contract 
which  would  never  have  been  entered  into  if  they  had  not 
committed  and  threatened  to  repeat  acts  now  declared  by  the 
Paris  Tribunal  to  have  been  a  breach  of  international  law. 


I'll 


U        I    I     I.     I  I 


148 


THB  TRIUMPH. 


Again,  it  is  contended  by  Great  Britain  that  the  United 
States  being  wrong-doers  cannot  take  advantage  of  a  contract 
of  this  kind  to  lessen  the  damage  payable  on  account  of  the 
tortious  act  complained  of. 


K.  1433, 

line  27. 


In  consequence  of  the  breaking  up  of  the  voyage,  Baker 
determined  to  abandon  the  sealing  business  and  sold  the  vessel 
and  equipment  at  a  very  large  loss  to  the  owners.  It  is 
submitted  that  in  assessing  the  amount  of  compensation  to  be 
awarded,  this  fact  should  be  considered.  The  evidence  shows 
that  the  schooner  and  sealing  outfit  was  actually  sold  for  ^9,000.  10 

Legal  and  other  expenses  were  incurred  in  preparing 
and  presenting  the  claim  prior  to  the  appointment  of  this 
Commission. 


Her  Britannic  Majesty  claims   the  following  damages  as 
resulting  from  the  premises  : — 

Illi')jiil  Ijoarding  and  scarcli  of  the  vessel -^  2,00<)  00 

Legal  and  other  ex|)ciise» ,  250  00 

Time  and  expense  of  owner   200  00 

Kstiniated  eatch  (8  huntinjf  boats  and  stern  Iniat  from 

nth  July  to  1st  Octolier)  :!,r,00  skills  at  S11 38,500  00  £0 


■10,950  00 


Interest  on  all  tlie  aliove  items  at  the  rati'  of  7  I'er  cent, 
from  <Iate  of  loss  until  |iayiiieiit. 


voyage  he  made  a  special  'i'"'  i":. 
feet.     This  latter  statement  line  r*.' 


K.  14RS, 


1889. 


"TIIH  ARIKL." 

Claim  No.  19. 

The  "  Ariel"  was  a  British  schooner  of  91  tons,  registered  u.  ii.v.i. 
at  St.  John,  N.13.  """•"'■ 

In  1889,  she  was  outfitted  for  a  long  season.     The  master  i,!-  m"'. 

1-1  •       •  1  •    •  •  1     /-\      1      '''"'  ''^■ 

saye  that  m  the  spring  it  was  his  intention  to  try  the  October  ^  j^,,- 

sealing  in  Behring  Sea,  and  he  outfitted  to  remain  for  that  ','j"'',jj{;, 

period.     At  the  beginning  of  the 

10  agreement  with  his  crew  to  that  effect. 

is  corroborated  by  the  testimony  of  Smith  and  Qerow,  who  i",ir  20. 

were  hunters  on  board  the  "Ariel."  ihJJo^' 

K.  14S7, 
linr  "lO. 
R.  ll'.IO, 
Ihie  21. 
R.  HH7, 
linn  5(». 

The  determination  to  so  remain  in  the  sea  was  based  upon  r.  i4!i4, 
information  which  had,  prior   to  the  time  of  scaling,  been  n.'um, 
obtained  by  the  master  and  hunters  from  the  crews  of  whaling  '"'"  ^"• 
vessels  and  other  sources. 
20      The  "Ariel"  carried  a  crew  of  22  whites,  2  Indians  and  a  ij.  udi, 
Chinaman,  and  had  6  hunting  boats,  one  hunting  canoe  and  '""^'  ^''' 
another  canoe  used  as  a  stern  boat.     The  hunters  were  first  R.  i4('>i, 

,  line  30. 

class  men. 

The  vessel  left  Victoria  for  Behring  Sea  on  the  last  day  of  r,  hoi. 
May  or  early  in  June,  and  entered  the  Sea  on  the  13th  of  July.  ""    '' 

Before  entering  the  sea,  the  seals  caught  on  the  coast  were  ^  i.i,i|_ 
transferred  to  the  schooner  ""Wanderer"  at  Shumigan  Island  "•  '■"'"• 
or  Sand  Point. 

On  the   30th  July,  about  6  a.m.,  the   American  revenue  }{.  ]m,7, 
30  cutter  "Rush"  came    alongside   the    schooner,    which  was'""'''*' 
then  among  the  seals  and  had  run  up  the  British  (lag,  and 
sent  officers  on  board  to  examine  and  search  the  vessel.     In- 
quiries were  made  as  to  the  number  of  crew  on  board,  the  time 
of  their  entering  Behring  Sea,  and  the  number  of  seals  taken. 

The  officer  of  the  "  Rush  "  also  warned  the  schooner  that 
if  caught  with  fresh  skins  on  board  they  would  be  seized. 
On  account  of  the  fear  inspired  by  the  action  of  the  cutter,  the 
boats  did  not  go  out  at  the  usual  hour  in  the  morning.  The 
seals,  however,  were  very  plentiful  about  the  ship  ;  the 
40  witness  Smith  says,  they  were  tiiicker  than  he  had  ever  seen  R.  iiki, 
them  before  at  any  one  time.  Therefore,  about  9  or  10 
o'clock  in  the  morning,  after  the  cutter  had  left,  it  was 
thought  the  boats  could  make  a  catch  without  being  observed  H.  iii!:', 

'^  .  .        .  liiif  li"-'. 

by  the  steamer  though  its  smoke  was  still  in  sight.  The 
orders  were  to  remain  near  the  schooner.  Some  of  the  boats 
in  their  eagerness  to  catch  seals  got  out  of  sight.     On  the 

149 


if; 


i^M 


m 


5  m 


-i'm 


fm^m^^ 


160 


THE   ARIEL. 


K.  Has, 

linn  1)5. 
K.  HNS, 
line  IV). 
K.  1  IWt, 
liiir  S6. 
K.  14Sn, 
liiu<  2'), 

K.  Hta. 


R.  14«3, 
line  50. 


R.  H(i3, 
line  10. 


R.  1464, 
line  60. 


other  hand,  others  remained  on  board  most  of  the  day  through 
fear.  The  witness  Qerovv  says  that  but  for  this  circumstance, 
he  would  have  got  30  or  35  seals  that  day,  instead  of  his 
actual  catch  of  5  or  8.  Notwithstanding  these  interruptions 
the  schooner  took  120  seals  that  day. 

On  the  1st  August  a  thick  fog  came  up  at  times  ;  tiie  boats 
were  all  out,  but  in  the  evening  one  of  them  did  not  return, 
having  been  lost  in  the  fog.  On  the  2nd  Augu.st  a  strong 
breeze  was  blowing  and  the  schooner  started  a  search  for  the 
missing  boat.  The  wind  afterwards  increased  to  a  gale,  10 
obliging  the  vessel  to  heave  to  for  the  rest  of  the  day.  The  3rd 
August  was  still  stormy  and  so  was  the  4th,  and  the  whole  of 
that  day  and  the  5th  was  spent  in  looking  for  the  boat.  On 
the  6th  August  the  boats  were  out  and  got  three  seals  only. 
The  7th  was  a  fine  day  and  the  boats  took  65  seals.  On  the 
8th  which  was  a  rainy  day  and  thick  weather,  the  schooner 
"Lillie  L."  was  spoken  and  reported  news  of  the  missing 
boat.  On  the  9th  the  boats  were  out  and  took  26  seals.  The 
10th  was  a  lowering  day,  but  the  weather  was  not  such  that 
the  boats  could  go  far  from  the  ship,  and  only  15  seals  were  2q 
taken.  On  tlie  11th  the  boats  were  out  all  day  and  took  45 
seals.  The  12th  was  also  a  lowering  day  and  the  boats  were 
out  most  of  the  time  and  brought  in  25.  No  sealing  was 
done  on  the  13th.  The  14th  was  a  lowering  day  with  14  seals 
for  the  day,  and  on  the  16th,  111  seals  were  taken  and  12  on 
the  16th.  On  the  17th  the  wind  was  south-west  and  the 
weather  foggy.  The  vessel  was  lying  under  mainsail — 1  seal  was 
shot  from  the  deck  by  James  Shields  and  many  others  were 
seen  from  the  vessel  during  the  day.  On  the  18th,  the  entry 
in  the  log  of  the  schooner  reads :  „« 

"  First  part  of  the  day  moderate  breeze  with  fog  at  times 
Boats  out  and  returned  at  10  a.m.  with  no  seals  except  Walker 
who  brought  in  one.  At  11  a.m.  spoke  the  schooner  '  Mary 
Delio  '  again.  They  report  that  12  vessels  had  been  seized  up 
to  the  12th  August,  many  of  which  are  Victoria  vessels,  among 
them  being  the  '  Black  Diamond  '  '  Minnie  '  '  Pathfinder ' 
'  Viva,'  '  Mary  Taylor,'  &c.,  also  the  schooner  '  Lottie ' 
which  picked  up  our  lost  boat  and  men.  Have  now  decided  to 
leave  the  sea  at  once  at  it  is  quite  clear  that  many  seizures  will 
be  made  this  season,  perhaps  all  the  vessels  that  remain  in  the  40 
eea.  The  schooner  '  Mary  Ellen  '  is  reported  to  have  thrown 
overboard  700  seal  skins  while  the  cutter  '  Rush  '  was  run- 
ning up  on  her,  which  probably  saved  her  from  being  seized." 


|{.  I4(>7, 
1iiir:!0. 
K.  14H4, 
inu  10. 


The  "Ariel "  passed  the  19th  in  Four  Mountain  Pass,  work- 
ing her  way  out  of  che  sea.  She  also  was  there,  with  light 
variable  winds,  on  the  20th,  and  on  the  21st  got  clear  of  the 
Pass  and  made  for  Victoria. 

It  was  the  intention  of  the  captain,  if  he  had  not  been  inter, 
fered  with  in  July,  to  have  sealed  during  the  season  to  the 
W  S.W.  of  the  Pribylov  Islands,  working  from  that  position  60 
around  to  the  W.  N.W.,  and  finally  to  the  W.,  within  a  radius 
of  from  60  to  120  miles  of  the  Islands.  But  after  having 
been  warned  on  the  30th  July,  the  master  says  that  this  course 


THB   ARIKL. 


161 


lino  21. 


was  changed,  and  from  that  time  forward  the  schooner  left  the 
good  sealing  grounds  and  orders  were  given  to  the  boats  to 
keep  ahead  of  the  vessel  which  was  working  slowly  to  the 
south  in  order  to  be  near  the  Pass  and  ready  to  leave  the  sea 
at  once  if  the  cutter  should  again  appear  in  sight.  This  evidence  R.  um, 
is  corroborated  by  the  witnesses,  Smith  and  Gerow. 

Legal  and  other  expenses  were  incurred  in  preparing  and 
presenting  the  claim  prior  to  the  appointment  of  this  Commis. 
sion. 


^^     ITer  Britannic   Majesty  claims  the  following  damages  as 
resulting  from  the  premises  : — 

IlleKiil  Imaiding  nnd  search  of  the  vchscI .?     2,0(10  00 

Lt'Rnl  and  ether  e.\|K'iise.f '2M  <M> 

Tiliie  and  exixMise  (if  owner   20(1  00 

Kstiniatcd  catch  (I!  boats  and  1  caiUH',  from  :<Oth  •Inly  to 
1st  October,  le»8  the  4((ri  skins  taken  after  warning), 
1,(101  skins  at  *11 17,(11100 

*i20,(Hil  00 

Interest  on  all  the  aliove  items  at  the  rate  of  7  |K'r  cent 
from  (late  of  loss  until  payment. 


11 

■I" 


;   5 


11^' 


!!!i 


¥  ■'  • 


■V .;!! 


I.HM1». 


R.  13!I4, 
liim  44. 
R.  1377, 
lint*  <I0. 


K.  137li  and 
131)5. 


I37S,  liiii'  'Jl. 


I!.  137S, 


R.  1380, 
lino  2. 


K.  138(!-7. 
R.  137S-9. 

R.  l.WS. 
R.  137'J. 

H.  \:m. 


R.  i.ssn, 

lino  2S. 


R.  13S7 


THE  "KATE." 
Claim  No.  20. 

The  "  Kate  "  was  a  registered  British  schooner  of  58  tons. 

In  1880,  after  sealing  on  the  const  the  schoonor  entered 
Bohring  Sea  on  July  24th,  for  the  purpose  of  sealing,  being 
fully  equipped  and  provisioned. 

She  had  eight  canoes  and  one  stern  boat,  four  white  men 
and  the  balance  of  the  ciew  were  Indians.  Neal  Moss  and 
Alexander  Reppen  were  respectively  noaster  and  mate.  10 

On  August  13th,  the  "  Kate  "  was  ordered  out  of  Behring 
Sea  by  the  United  States  revenue  cutter  "Rush."  She  was 
then  in  latitude  54*45  N.,  and  longitude  1 65*50  W.  On  that 
date  the  following  entry  was  made  in  her  log : — 

"  13th  August,  at  6  p.m.,  sighted  a  steamer  ;  wind  increas- 
ing with  heavy  sea.  At  7  p.m.,  sighted  the  revenue  cutter 
'  Rush,'  pumps  light,  and  was  spoken  by  her  ordering  the 
schooner  out  of  Behring  Sea.     Ilove  to  during  the  night." 

A  heavy  south-westerly  breeze  was  tlien  blowing  and  the 
vessel  immediately  made  for  Uniraak  Pass.  20 

Reppen  says : — 

"  The  same  day  we  were  seized  we  were  going  north. 

"  Q.  So  that  day  you  were  not  making  for  Unimak  Pass  ? 

"  A.  We  turned  right  around,  we  steered  for  Unimak  Pass 
after  we  were  ordered  out. 

"  Q.  Every  day  after  you  were  warned  out,  your  course  bore 
in  the  direction  jf  Unimak  Pa.s8  as  fast  as  you  could.  A. 
Yea,  couldn't  do  it  any  faster  on  account  of  weather  and  wind. 
We  were  becal  naed  one  day,  then  we  had  nasty  weather  and 

%•"  80 

Neal  Mosf;  gives  evidence  to  the  same  eftect  by  referring  to 
the  GQtries  in  the  log. 

In  thus  making  for  Uniraak  Pass  they  lowered  and  took 
seals  as  follows  : — On  August  14th,  10  seals ;  on  August  15th, 
57  seals ;  on  August  16th,  1  seal  sliot  from  deck. 

The  vessel  came  through  the  Pass  on  August  18th,  and  on 
her  way  to  Victoria,  where  she  arrived  on  September  the 
10th,  she  stopped  at  three  ditterent  trading  stations.  She 
could  as  well  have  stopped  there  fifteen  days  later.  ^q 

She  landed  provisions  at  one  of  the  trading  stations  and  had 
a  quantity  left  when  she  arrived  at  Victoria. 

The  schooner  would  no  doubt  have  remained  in  Behring 
Sea  until  the  end  of  September,  had  she  not  been  ordered  out. 
In  this  connection  Neal  Moss  says  : — 

"  Q.  Now,  tell  me,  Captain,  wliat  were  your  instructions  as 
to  the  time  you  should  stay  in  the  sea.  A.  My  instructions 
were  to  stay  there  as  long  as  the  weather  would  permit. 

152 


.1'  r 


TUB    KATB. 


168 


Ci.  '•  Asa  iniittor  of  tact  what  cuiisimI  you  to  louvo  wlioii yoii 
(lid  loavt'?  A.  On  uccoiiiit  of  boiiig  afraiil  of  Hcizuro  it'Ht'cri 
a^aiii. 

"  Ci.   Any  otlicr  reuson  ':■     A.  No,  not  that  I  know  or. 

"  (J.  If  it  had  not  heen  for  your  Wiirning  would  you  not  have 
j^ono  or  would  you  have  yonu?  A.  Wo  would  have  utayod 
there.     We  had  a  lot  of  proviwions  and  water,  and  everythinjf. 

"  Q.  WuHtheiH^  anytliin^  in  the  state  of  tlie  weather  to  drive 
you  out  of  tliere'  A.  No,  not  then  It  was  all  rif>ht.  Wo 
10  luijfht  get  a  day's  hlow,  hut  then  we  didn't  mind  that.  I  ex- 
l)eeted  lots  of  tine  weather  after  that  «hiy." 

See  also  Uepiien's  cvidenee  on  tlio  sanio  point. 


|{.  i;(H.\ 

lillr  TlS. 


fiCgal  and  other  expenses  were  incurred  by  the  owner,  in 
preparing  ami  presenting  the  claim  prior  to  the  appointment  of 
this  Conunisbion. 


Iler  Britani\ie  Majesty  claims  the  following  damages  as  result- 
ing from  the  premises  : — 


r.  Ivi-mV  1  iiiiip'!* 

Tiiiii'  iiiiil  i\pi'iiM'  iif  iiwiicT 


•M)  nil 


|-',^lilll;iti-'l  Cillrli  it  >('lliKiiir|-  ri.  •!  ilitt  1 1'l'ltii  w  illi  (Scail'»»'>^ 
ami  I  stiiii  lioivt,  I'lcnii  IHtli  .\\it,'ii-t  tci  \-l  ( )cliil)cr, 
li'<^  lis  -l,iii>  uclMiillv  tiik.ii  iifK  r  rtiiniiiij,'),  l,!l'.»t  at 
sll :.'I,!WI  (Nl 


.*L''-',!WI  IM) 


liitircst  1111  all  till'  aluiM'  iti'iiis  at  llir  latr  nf  7  I'l-v  ciiit 
fiiiiii  ilalriif  hi.'.s  until  |iayiiiiiil. 


»  S- 


•JO 


■  MINI. 


!l; 


TITK  "PATH FIN DKIl." 
Claim  No.  21. 


K,  M-.M  :t, 


U.  -HI-'J. 
If.  H2I. 


II  :.SL'.  .\  s-j; 


H.  7H1, 
ML>2-3. 


U.  KL'3. 


I!.   IHlll. 


In  Marcli,  1890,  tliirt  scliooncr  was  tMigaged  sealing  in  tlio 
iieiglil)()iirhootl  (»t'  Ni-ali  Hay,  with  a  crew  of  wliite  men,  ami 
eqnippt'd  wilh  live  itoats  and  a  stem  boat.  One  Marvin,  now 
dead,  was  captain,  and  one  Alex.  Hcppcn  was  mate. 

On  2(5th  March,  while  off  C!ape  Flattery,  her  rudder  was 
damaged  and  she  put  in  Neah  Vay  for  repairs. 

Tlie  !'Ci)airs  wore  completed  and  slio  intended  to  leave  the 
next  morning.     Neah  Bay  is  about  20  miles  from  the  bcaling  jq 
ground. 

Early  in  tlie  morning  of  the  27th,  an  ofHcerfrom  tlic  United 
States  cutter  "  C'orwin  "  boarded  the  "  I'athfinder,"  examined 
her  papers,  seized  the  vessel,  sent  a  crew  on  board  with  a  tow 
line,  and  towed  her  from  Neah  Bay  to  Port  Townseml,  a  dis- 
tance of  about  t!0  miles  ;  the  voyage  lasted  from  6  a.m.  till 
noon.  Port  Townsend  is  out  of  the  sealing  ground.  On  the 
way  and  while  at  Port  Townsend  an  officer  from  the  cutter 
renmined  on  board  the  "  Pathfinder." 

The  crew  were  kept  on  board  (though  some  of  them  asked  20 
to  go  ashore)  the  whole  of  the  27th,  the  28th  and  nart  ut'  :ho 
29th,  when  the  schooner  was  released. 

The  following  telegrams  were  exchanged  in  connection  witli 
the  arrest  and  releasi'  of  the  "  Pathfinder"  : — 

On  29th  March,  1890,  C.  L.  Hooper,  commaiuler  of  the 
"  Corwin,"  telegraphed  to  the  Secretary  of  the  Treasury  at 
Washington  : — 

"I  found  at  Neah  Bay  to-day  British  schooner  '  Pathtinder.' 
Escaped  from  steamer  '  Kush  '  alter  seizure  in  Behring  Sea 
last  year.     Have  detained  and  brought  her  to  this  place  and  go 
transferred  to  custody  of  collector  of  customs  pending  advice 
from  the  department." 

On  the  same  day  C.  M.  Bradshaw,  collector  of  customs  at 
Port  Townsend,  telegraphed  to  the  Secretary  of  the  Treasury 
at  Washington  : — 

"  Am  detaining  British  schooner  '  Pathtinder  '  and  waiting 
instructions ;  please  advise." 

On  the  same  date  again,  G.  B.  Tichuor,  Assistant  Secretary 
of  the  Treasury,  telegraphed  to  the  collector  ot  customs  at 
Port  Townsend  : —  40 

"In  the  year  1887  the  department  in  a  case  quite  similar, 
but  in  some  respects  stronger,  lor  the  department  decided  that 
the  vessel  could  not  be  held.  In  view  of  that  precedent, 
without  now  reviewing  the  principles  upon  which  it  proceeded, 
I  direct  release  ot  the  '  Pathlider.'  " 

154 


THE   PATIIKINbER. 


165 


Tho  schooner  whb  ncconUiifjly  releasiMl.  It'slio  had  not  been 
intcrforod  witli  wh»'  would  liavo  rusiimod  Huurmj^  on  tlie  27th 
of  Maruh,  and  no  doubt  would  Imvo  continued  tor  Hun>c  tirno, 
but  under  tlio  circumstancert  she  went  to  Victoria. 

The  locality  in  question  wuh  always  coimidcrod  a  good  soaling 
ground,  tho  best  in  that  vicinity  ;  it  was  much  fro(iucntod  Ity 
sealing  vessels  at  that  time  of  year.  It  was  the  time  of  year  n.  thi;  a  m;. 
when  seals  were  caught  in  that  neighbourhood.  Most  of  tlio 
scalers  go  t  here  every  year  and  very  good  (latches  are  made. 
10  During  the  time  that  tho  "  Pathtinder"  was  detained  under 
arrest  the  weather  was  good,  and  other  vcHsels  lowered  their 
canoes  from  day  to  day. 

Had  the  "  Pathfinder"  not  been  interfered  with  she  would 
no  doubt  have  caught  at  least  100  peals. 

Legal  and  other  exiionses  were  incurred  by  the  owner  in 
preparing  and  presenting  the  claim  prior  to  the  appointment 
of  this  Commission. 

Her  Britannic  Majesty  claims  the  following  damages  as  re- 
sulting from  the  premises  : — 


29 


llli'j,'al  Ihuii'iIIiik.  Miiicli  mill  iiiir»l  uf  tlu'  ii^wl    

Kstiniiiti'd  ciitcli,  KKt  HcalM  n\  Jjlt) 

rriMiiiiiU  unci  legal  cxiKliscH 


.s     •J.tMKP 
l,r)il(i 

*'f,7U0 


llitiri'st  (111  all  till'  alMiVf  items  at  the  lute  of  7  per  cent 
friiiii  iliite  of  loss  until  |>:iyiiient. 


Uifl 


I 


1892. 


THE  "HENRIETTA.- 


K.  KmO, 
liiK'  41). 


1!.  Ii;ti7, 
liiii'  lid. 


li.  Kilil. 
lilU'  Ij. 


K.  ii;iy 

lillr  L'll. 


Claim  No.  22. 

Tlie  "  Henrietta  '"  was  a  Ufitish  scliooiior  l)iiilt  in  the  your 
188(5.  registerud  at  the  jiort  ol'  \'it'toria,  •'•i-t]  t't.  long,  10'(5  ft. 
inhreadth  anil  '>  t't.  in  (k'pth  :  her  rogisteied  tonnage  was  80'r)2. 

At  the  time  of  seizure  liereinafter  mentioned,  the  seliooner 
was  owned  by  Charles  Spring  and  James  Fell. 

In  the  spring  of  the  year  1886,  the  "Henrietta  "  started  for 
a  sealing  voyage  to  the  North  Paeiiie  Ocean  and  Behring  Sea.  K) 
Her  master  was  Micajah  Pinckney. 

She  carried  three  boats  and  eight  eaiioes  when  she  eleared 
from  Vietoria,  hut  before  entering  Behring  Sea  she  left  six  of 
her  canoes  at  Tonki  I3ay. 

On  the  4th  September,  18lt2,  whilst  in  the  open  waters  of 
Behring  Sea,  70  miles  from  land  she  was  boarded  by  an  officer 
from  the  Tnited  States  ship  "  Yorktown."  Captain  Pinckney 
describes  wliat  took  place  as  follows: — 

"  We  were  Hying  tlie  British  Hag.  The  boarding  officer 
demanded  the  sliips  papers.  After  I  objected  he  said  that  he  20 
was  there  for  that  purpose,  and  he  was  bound  to  have  them  ; 
then  after  I  gave  them  to  liim,  be  wanted  tlio  guns  ;  after  he 
got  the  guns,  be  ordered  my  white  crew  into  the  boats  and 
took  them  away  in  the  '  Yorktown.' 

"  All  but  myself  and  the  cook  were  taken.  An  officer  from 
tlie  'Yorktown"  remained  on  board  with  si.K  men,  with 
instructions  to  make  sail  towards  Ounalaska.  The  weather 
was  very  rough  at  the  time  and  the  'Yorktown'  could  not 
take  us  in  tow.  The  schooner  sailed  to  Ounalaska  in  charge 
of  the  'Yorktown's"  otiicer.  We  arrived  at  Ounalaska  on  .SO 
the  r)th  September. 

"Q.  Did  anything  take  place  at  Ounalaska?  A.  Well  the 
officer  was  on  board,  lie  went  on  board  of  bis  own  ship  and 
he  left  a  coufile  of  men  on  board  to  take  charge  of  the  schooner, 
and  then  the  officer  of  the  '  Corwin  "  came  on  board.  He  said 
that  the  vessel  had  been  turned  over  to  him  ;  that  he  would 
put  a  watchman  on  board  and  not  allow  anyone  togo  on  .■^luu-e 
I'rom  on  board  the  vessel. 

"Q.  What  took  ];lace  next  y  A.  Well,  J  think  that  it  was 
the  next  day,  Captain  Hooper  sent  forme.  Previous  to  that  40 
he  .sent  for  the  cook  ;  then  aft(>r  the  cook  came  back  lie  sent 
tor  me,  and  on  going  on  board  be  said  that  ho  had  been  infor- 
med that  I  had  violated  the  customs  laws,  and  that  lie  was 
going  to  tow  me  to  Sitka,  and  put  me  before  tlie  I'nited  States 
District  Court,  and  if  1  got  clear  he  would  tow  me  to  Victoria. 

"(i.  Were  you  told  before  that  day  that  yo  :  were  arrested 
for  liaving  violated  the  revenue  laws?  A.  The  officer  that 
lioarded  us  did  not  say  that,  he  wanted  to  (!0unt  the  skins,  and 
I  said  wliy  not  let  them  l)e  until  we  get  in  ;  he  said,  I  want 
to  get  them  ready  .so  as  to  turn  Ihein  over  to  the  British  man-  oO 
ol'-war. 

lot) 


TUB    lIFa-IKIETTA. 


157 


"  Q.  Giving  you  to  umleri«',iiii(l  what?  A.  llu  gave  inc  to 
undei'staiul  in  our  convoraation  that  wt>  would  l)o  turno(l  over 
to  tho  Briiiwli  tnan-ot-war. 

"  Q.  lint  lio  didn't  say  in  any  way  nor  in  expressed  terms 
tiiat  you  were  seized  tor  iiaving  violated  tlio  modua  rinnidi  .' 
A.  Well,  when  I  objected  to  being  seized,  1  told  him  that  the 
moilns  rivnuli  had  exi>ire(l  as  1  understood  at  the  end  of  May, 
and  he  said  tluit  it  had  been  renewed  #  ^  *  *  On  the 
9th  of  Mareh,  tlie  "  Oorwin''  came  alongside,  took  us  in  tow,  i;.  \mx 
10  iuid  proceeded  towards  Sitka,  still  leaving  the  prize  crew  on 
board.  After  leaving  Ouualaska  the  tow  rope  [arted  in  a  gale 
and  we  v.'ere  ordered  to  sail  to  Sitkn,  wbich  we  did,  Tlie 
schooner  arrived  at  Sitka  on  the  2iitii  Se[itembor. 

"The  next  day,  Oaptain  Hooper tock  the  skins  oft' and  took 
them  ashore.  There  were  420  skins,  and  then  the  schooner 
was  turned  over  to  the  United  States  Marshal,  who  sent  a  man 
on  board  and  took  charge  of  her." 

The    master  remained  on    the  schooner  for  a  day  and  then 

went  ashore  ;  after  his  arrival   at  Sitka  he  was  not  interfered 

20  with  personally.     He  remained  there  for  2  days  and  then  went 

to  Victoria.  He  had  no  money  to  pay  his  passage,  but  arranged 

to  pa3'  it  at  Victoria. 

The  crew  were  kept  at  Sitka,  both  Indians  and  white  men. 
The  master  does  not  know  what  became  of  the  Indians  after 
the  skins  were  taken  from  the  ship. 

When  the  master  left  Sitkfi,  the  crew  v/ere  in  jail,     lie  was 

at  the  jail  the  day  before  he  left  and   saw  them.     lie  thinks 

they  were  put  in  there  to  [irevent    them  from  going  away  on 

the    steamer    in    which    he    went     to     A^ctoria,     viz: — the 

30  <•  Coquitlam." 

The  master  paid  -SaO  to  go  to  Victoria,  and  he  incurred  a  K.  icnt. 
small  expense  at  Sitka.  He  says  that  he  went  to  Victoria  to 
report  to  his  owners,  where  he  reiiuiined  until  the  following 
July,  wlien  he  beard  that  his  vessel  was  r 'leased.  Tie  then  j)ro- 
ceeded  to  Sitka  again,  and  found  that  the  authorities  hail 
received  orders  to  release  the  vessel,  but  they  refused  to  deliver 
her  to  liini,  and  she  was  not  actually  released  until  the  23rd 
November,  1898. 

Her  tuaster  further  says  that  whilst  at  Victoria,  he  incurred 
40  an  expense  of  about  §000  from  the  time  be  got  down  in  Sept- 
ember until  he  got  back  to  Sitka  in  the  following  July,  ami 
that  tliis  was  outside  of  his  jias-sage  money  which  cost  bini  ^50 
each  way,  Atter  the  vessel  was  delivered  to  him  he  was 
delayed  for  some  time,  and  sailed  from  Sitka  about  the  20tli 
or  2:)r(l  -lanuary,  in  the  "  Henrietta"  and  arrived  in  Victoria 
on  the  17th  February,  1S94. 

Being  asked  wluit  caused  this  delay,  he  answered  ; — 
"  Well,  we  bad  no  provisions,  and  had  no  way  to  get  any." 

He  state.i  that  the  vessel  was  looking  [iretty  well  ble;iched  ; 
-,o  her  riitging  bad  been  lyini;-  on  her  and   the  rain  iiud  fros'  |iut 
it  in  bad  condition.     He  bad  to  get  .i  new  foresail  and  a  lot  of 
runniu"'  gear      He  got  away  as  soon  as  he  could. 

Whilst  at  Sitka  be  incurred  considerable  expense  both  on 
i)er80iud  account  ami  in  getting  the  shiii  in  order.  His  per- 
sonal expenses  amounted  to  $148. 


\: 


I 


^^i 


■  '•1 


158 


THE    IIBNUIETTA. 


R.  llilio. 


U.  li>lUi. 


H.  lili!7. 


I!.  11171. 


li.  ii;rii. 

lillciiV 


K.  ir,7L', 

I  ill.'  r,->. 


It.  11171, 

lillr  (ill. 


I!,  h;;." 


Tho  4"20  r'kiiis  tliat  had  licoii  soi/.cd  wore  (U'liverod  hack  to 
him  a  few  days  after  the  vessel  was  retiiriic<l ;  they  were  some- 
what gnawed  hy  rats.  Tliey  were  gnawed  all  round  tlie  edges 
where  they  wore  piled.  I!e  was  compelK'd  to  dispose  of  105 
skins  to  purchase  provisions  necessary  to  take  the  vcs.^el  to 
Victoria,  lie  horrowed  on  these  skins  two  sums:  !S46!i.l5 
and  $56.  A  portion  of  which  was  used  to  purchase  provi- 
sions, ropes  and  chains,  and  the  halance  for  the  crew.  He 
produced  an  inventory  of  the  provisions  and  other  articles 
found  on  hoard  tiie  "Henrietta"  when  she  was  delivered  |o 
hack  and  states  that  eight  guns  and  one  rillc  had  heen  taken 
and  that  they  were  damaged  when  tiiey  were  returned.  Three 
hoats  had  heen  taken;  whicli  were  in  good  condition  at  the 
time  hut  they  were  returned  in  bad  condition,  much  broken 
and  worn  out.  They  were  no  good  whatever ;  they  had  bee- 
used  at  Sitka  with  the  consent  of  the  United  States  authorities; 
hired  out  to  any  [icrson  that  wanted  them.  This  was  proved 
hy  the  [iroduction  of  the  orders  to  give  the  boats  to  the  parties 
requiring  them. 

The  vessel  when  she  was  delivered  back  had  a  good  many  20 
worm  holes  in  her  below  the  water  mark,  where  the  boats  had 
chafed  the  paint  ott";  no  care  liad  been  taken  of  her.     Before 
the  sci/.ure,  when  at  Tonki  Bay,  Tinckney  had  beached  lier 
and  examined  her  bottom  and  found  no  worm  holes  then. 

The  vessel  had  not  been  copper  painted  and  her  centre 
board  was  badly  damaged.  Her  running  gear  was  (piite 
rotten  ;  her  upper  sails  were  all  right  exccitt  the  main  top 
mast  stay  sail  which  had  been  left  down  in  the  hold  was 
mililcwcd  and  rotten  and  of  no  value. 

Pinckney  further  says  : —  30 

"  Q.  Was  the  'Henrietta'  in  a  seaworthv  condition  in 
November,  18113? 

'•  A.  Well,  sli(^  managed  to  get  down  here  (Victoria).  She 
was  leaking  a  good  deal  when  she  was  tunnel  over  to  us;  we 
iiad  to  keep  pumping  very  often. 

'*  Q.  iiut  it  was  not  necessary  to  make  .iiy  re[)airs  when 
you  did  start  down  ? 

"  A.   No,  I  thoiigiit  we  could  keep  her  alloat. 

"The  skins  were  damaged  by  rats  to  the  extent  of  about  8;3 
each  or  something  like  that.'"  ^q 

Thomas  J.  Hampton  was  cook  on  the  "  Henrietta'' at  tlie 
time  of  sci/.ure,  and  was  left  on  board  until  she  arrivotl  at 
Sitka,  where  ho  remained  until  January,  1804 ;  he  could  not 
got  away,  having  no  money,  and  remained  on  the  vessel  all 
the  time.     He  testifies  ; 

"t^.  Were  you  occnjiied  a  part  of  the  time?  A.  When  the 
mail  boat  would  come  in  I'roin  I'ort  Townsend  we  could  go 
ashore  and  work  a  few  hours  to  keep  in  existence  by  fishing 
and  selling  li.sh  to  the  soldiers  and  men-of-war  stationed  there; 
wc  used  to  make  an  existence  that  way."  50 

"(i.  Did  you  try  to  get  your  passage  down?  A.  Never 
could  g(!t  enough  money  ahead  to  get  a  passagi!  down  ;  it  cost 
s:50  steerage  passage,  'i'lie  mate,  oni'  seaman  and  myself  I'e- 
mained  in   this  inanner,  and  came  bark  in  the  vessel  to  Vic- 


THE    IIENRIKITA. 


169 


n.  U\". 


toria ;  the  others  had  loft  before.  The  Iiidians  had  left  pre- 
viously ill  an  American  schooner  to  Port  Townsend.  'Pliey 
took  their  canoes  with  them.  They  left  about  June  or  duly, 
18^3.     They  stopped  all  winter  on  board  the  "Henrietta." 

William    Ebmeier,   a  seaman   on   board   the  "  Henrietta" 
Htatesthat  after  the  seizure  he  was  transferred  to  the  "  York- 
town  "  and  taken  to  Ounalaska ;  thence  on  board  the  "  Corwin  " 
to  Sitka.     Whilst  he  was  on  board  the  "  Yorktown,"  he  was  i;.  i(,7i 
called  into  the  cabin,  put  under  oath  by  the  chief  ofKcer,  and 

10  c|uestioncd.  Six  of  the  crew  were  thus  examined.  They  were 
questioned  about  going  into  Behring  Sea ;  and  as  to  what  the 
vessel  had  been  doing  from  the  time  they  left  the  coast  until 
she  was  seized. 

Whilst  at  Sitka,  the  news  came  that  the  steamer '■  Coqnit- 
1am  "  was  coming  there  and  the  crew  tried  to  get  a  passage ; 
they  had  the  promise  of  a  passage,  but  the  Slieriff  came  on 
board  with  a  warrant  and  took  them  into  the  jail  and  shut 
them  up  and  kept  them  there;  all  the  crew  were  shut  up> 
except  the  master  and  cook,  until  after  the  steamer  "C()<iuit. 

20  lam"  left  the  wharf  If  they  had  not  been  so  .shut  up  they 
would  have  had  a  passage  down.  The  imrjiose  of  keeping 
them  was  that  they  were  wanted  for  the  trial.  After  the 
steamer  left  they  were  put  under  their  own  recognizances  to 
appear  at  the  trial. 

Ciesar  Lviering,  a  boat  steerer  on  the  "  Henrietta,"  after  cor- 
roborating the  evidence  of  Ebmeier,  states,  that  he  remained 
at  Sitka  about  five  or  six  months  :  that  he  was  huky  enough 
to  get  a  passage  with  the  Captain  of  the  "City  of  Topeka"  to 
Victoria.     He  had  not  a  cent  to  pay  for  his  jiassage  ;  none  of 

^^  the  crew  had  any  money.  He  had  to  work  his  passage  down. 
He  afterwards  borrowed  $30  to  pay  the  fare  of  Henry  .lacob- 
son,  another  of  the  crew. 

James  Fell,  who  was  part  owner  of  the  "  Henrietta"  in 
1892,  saw  the  vessel  after  she  cnnie  liack  from  Sitka,  between 
the  22nd  and  •Jtjth  March,  1804.  She  was  in  an  unseaworthy 
■  ondition.  lie  said: — "She  was  just  what  you  might  call  a 
liatch-up  lo  get  down  here  (N'ictoria)  ami  no  more;  everything 
was  worn  out  " 

"(i.  What  was  worn  out,  e.-^pecially 'r  A.  Well,  her  sails 
"^"  and  rope."-,  and  they  told  nie  they  had  to  borrow  ropes  from 
the  cutter  to  get  her  down  with  ;  slie  had  no  paint  on  her.  I 
ciinuot  say  anything  about  the  wcuins,  init  she  was  leaking 
very  badly.  I  had  to  pump  her  out  every  morning.  1  ne- 
glected it  one  Sunday  and  she  was  terribly  by  the  head  ;  in 
about  anoiher  21  hours  she  woul  1  have  ,-uiik.  About  two  or 
three  days  after  I  saw  her,  1  got  a  party  to  go  dnwu  and  look 
at  her.  lie  wanted  her  for  immediate  use  and  1  asked  him  a 
lirice,  and  he  :<aid  to  put  her  in  a  seaworthy  coiiditioii  at  oiue 
would  cost  a  great  deal  more  than  she  was  worth,  and  he 
'>•■*  would  have  notliing  to  do  with  her." 

The  price  asked  was  §1,500.      Fell  took  some  of  the  guns 
outof her.  a  chronometer  and  a  lot  of  sundries.      He  sold  the  u  ,;|,s 
eight  guns  ami  a  rille  all  damagoil  for  ffl.W.  i""  -'" 


I-     r-      ■     :i. 


III.' 


I!.  1711, 


ft 


160 


THE    irENlUETTA. 


I!.  I7:«. 


I!.  17:il. 
liiii-  .M(. 


Tlio  vessel  was  aftorwarils  sold  hy  the  Sliorift'ol' Victoria  on 
an  uxet'iititm  issued  at  the  suit  of  .\[eC2iiade  I't  Sous  against 
CMiarles  Spring.  His  interest,  only,  was  sold  under  the  exe- 
cution for  ??1,000  to  Charles  Haekett. 

Chiirles  Spring  says  he  was  managing  owner  of  the  "  Hen- 
rietta." She  was  in  vt'ry  good  condition  wlien  she  left  forlier 
sealing  voyage  in  1892  ;  he  saw  her  at  Kyuipiot  when  she 
was  leaving. 

S[iring  at  this  time  was  trading  at  Kynquot  and  sjient 
nearly  the  whole  of  his  time  there,  lie  heard  of  the  seizure  10 
from  Cajitain  Pinckney  when  he  came  down  from  Sitka  in 
1802.  lie  was  not  in  Victoria  when  Captain  Pinckney  went 
to  Sivka  in  July,  1S93,  and  he  had  no  idea  that  Pinckney  was 
intending  to  go  there.  Spring  was  then  at  Kyuquot  attending 
to  his  business  ;  he  did  not  authorize  Ca^itain  i'inckney  to  take 
delivery  of  the  vessel  nor  did  he  receive  any  letter  from  him 
whilst  he  was  there  (Sitka),  in  1893. 

Spring  was  not  at  N'ictoria  when  the  "Henrietta"  came 
liaek  ;  he  was  still  at  Kyuquot.  She  was  repaired  when  he 
came  back.  20 

Spring  further  says  that  he  would  have  used  the  "  Henrietta  " 
during  the  months  of  l)ecend)or,  .lanuary  and  February  in  the 
coasting  trade,  and  for  that  purpose  she  would  have  been  worth 
$250  to  ^.300  a  montli,  and  after  that  he  would  have  lifted  her 
out  for  sealing  for  the  year  1893  ;  and  he  further  states  that  he 
himself  was  put  to  considerable  personal  expense  in  the 
matter. 


H.  17.i7 


It.  ii;.Mi, 
liij>'  1.(1. 


William  Turpel,  a  ship-builder,  states  that  he  knew  the 
"  Henrietta"  in  1891,  when  he  hauled  her  on  his  marine  rail- 
road and  repaired  her.  He  gave  her  on  that  occasion  a  30 
general  overhauling;  made  new  bowspirit,  new  main  mast; 
pur  a  new  shoe  on  iier,  caulkcii  her  and  did  everything  that 
was  necessary.  The  repairs  cost  about  !?'290.  She  was  then  in 
first  class  condition.  He  states  that  at  that  time  she  would  be 
worth  about  -S4,000.  She  was  seemingly  \cry  nearly  new  and 
in  good  condition.  She  was  a  shallow  vessel,  not  very  deep  in 
the  hold,  l)ut  a  good  vessel 

With  the  view  of  ascertaining  w!nther  the  "  Henrietta  " 
had  been  guilty  of  a  breach  of  the  revenue  laws  of  the 
IJniteil  States,  her  crew  were  examined  on  oath  by  the  ollicer  40 
of  the  ''  Yorktown  "  as  above  stated,  and  from  inlormiition  so 
oblained  the  e  )mmander  ot  the  revi'uue  cutter  determined  in- 
stead of  jirosecuting  the  "  Henrietta  "  under  tli-'  terms  of  the 
iiioilus  vin H<li  <}]■  \\)V  n  breach  thereof  to  proceed  against  her 
for  a  fancied  in fi action  of  the  revenui'  laws,  of  which  as  a 
matter  of  fact  she  was  not  guilty,  and  accordingly,  on  the  (ith 
Seiiteniber,  1*92,  Captain  lloojier  served  upon  the  master  of 
the  '•  Henrietta  "  a  notice  as  follows  : — 

"Sir, —  In  the  discharge  of  <lnty  I  have  to  inform  you  that 
the  schooner  under  your  eoinnumd  is  this  day  seized  tor  viola-  5q 
tion  of  the  United  States  Customs  laws.     She  will    be    taken 


TUG   HENRIETTA. 


161 


in  tow  by  this  vessel  and  carried  to  Sitka,  Alaska,  to  be  brought 
to  trial  before  the  Distriiit  Court  at  that  place." 

Commander  Evans  on  September  7th,  1892,  wrote  a  letter  u.  iiir.i. 
ot  instructions  to  Mr.  Johnson,  United  States  District  Attorney, 
at  Sitka,  stating  that  Captain  Hooper  would  de'iver  to  the  Col- 
lector of  Customs  at  Sitka  to  be  by  him  given  into  his  jurisdic- 
tion, the  British  schooner  "  Henrietta,"  seized  for  violation  of 
the  Revenue  laws  of  the  United  States ;  that  he  would  also 
deliver  to  the  Collector  of  Customs  the  affidavit  of  six  of  the 
10  crew  of  the  "  Henrietta"  taken  by  him,  also  to  be  turned  over 
to  him.  "If  the  case  of  the  'Henrietta'  for  violation  of  the 
Revenue  laws  should  be  dismissed,  she  may  then  be  turned 
over  to  the  British  authorities  at  Victoria  to  be  prosecuted  for 
violation  of  the  modus  vircniH." 

And  on  the  10th  September,  1892,  Captain  Hooper  reported 
the  seizure  as  follows: 

"  U|ion  examination,  the  'Henrietta'  proved  to  be  about  K.  ii;r)2. 
31  tons,  and  to  have  on  board  420  fur  seal  skins  taken  in 
Behring  Sea.     On  or  about  the  20th  June,  1H9;?,  she  had  at 

20  Tonki  Bay,  Island  of  Afognak,  transferred  about  160  fur  seal 
skins,  her  coast  catch,  to  the  British  schooner  '  Kate '  of 
Victoria,  British  Columbia,  receiving  from  her  at  the  same 
time  and  place  coal,  flour,  biscuit  anil  other  stuff.  Upon 
ascertaining  all  the  facts  in  the  case,  I  (Capt.  Evans)  directed 
Cai>tain  Hooper,  of  the  cutter  'Corwin'  to  seize  the 
'Henrietta'  for  violativ^i:  r>f  sections  28G7  and  2868,  Revised 
Statutes  of  the  United  States,  and  to  proceed  with  her  to  Sitka, 
and  there  to  deliver  her,  etc.,  to  the  Collector  of  Customs. 
4(:     *     #     *     #     I,  at  the  same  time  made  a  declaration  of 

30  seizure  against  her  for  violation  of  the  modus  vivendi  and  sent 
the  same  to  the  District  Attorney  with  a  request  that  in  case 
of  failure  to  condemn  her  on  the  charge  of  receiving  and 
transferring  cargo  in  violation  of  the  Revenue  laws,  she  be 
turned  over  to  the  British  authorities  at  Victoria  tor  trial 
under  the  modus  vivendi.^' 

It  may  here  be  noted  that  there  was  no  ground  whatever 
for  seizing  the  vessel  for  a  breach  of  the  Revenue  laws.  The 
facts  alleged  in  the  seizing  officer's  rciiort  were  utterly  insuffi- 
cient to  lay  a  foundation  for  such  a  seizure.  The  acts  said  to 
40  have  been  committed  by  the  'Henrietta'  co'.stituted  no 
breach  of  such  laws,  and  even  if  they  did,  clearly  did  not 
authorize  a  seizure  of  a  British  registered  vessel  on  the  high 
seas. 


On  the  22nd  September,  1892,  the  United  States  Attorney 
for  the  District  of  Alaska  libelled  the  "Henrietta"  in  the 
United  States  District  Court  in  and  for  the  District  of  Alaska. 
The  charge  was  that  on  the  20th  June,  1892,  within  the  limits 
of  the  Alaska  collection  district  \a  Tonki  I'ay,  certain  goods 
were  unladen  from  the  schooner  "  Kate  "'  and  received  on  board 
50  the  si'hooner  "  Henrietta,"  and  that  on  the  same  date  she  had 
entered  Tonki  Bay,  and  had  failed  to  report  at  the  office  of 
any  Collector  of  C'ustoms,  and  that  the  "  Henrietta  "  had  trans- 
ferred certain  seal  skins  on  board  the  schooner  "  Kate." 
BS— 21 


1 1 
III 


f. 


ii 


^^■■"■lip 


162 


THU    HENRIETTA. 


R.  Iisiis, 
liiii'  ."> '. 


R.  IU"i2, 
liiu'  41. 


I!.  l(ir.:i, 
line  HI. 


Process  was  issued  on  tliis  ititbrmation  and  the  vessel  arrested 
thereunder. 

The  master  retained  counsel,  Messrs.  Hughes  &  Hastings,  of 
Seattle,  to  defend  the  case,  and  a  very  considerable  expense 
was  incurred  in  the  defence  ;  a  number  of  witnesses  were 
examined,  and  on  tlie  9tli  October,  1893,  it  having  become 
apparent  that  the  proceedings  against  the  vessel  could  not  be 
sustained,  the  United  States  Attorney  moved  to  dismiss  the 
libel  and  to  discharge  the  vessel,  lier  boats,  tackle,  apparel  and 
furniture.  1Q 

Diplomatic  correspondence  took  place  between  the  (Jovern- 
ments  of  Great  Britain  and  of  the  United  States  from  which  it 
appears  that  the  latter  (ioverninent  admitted  that  the  proceed 
ings  against  the  vessel  had  been   iniiiroperly   taken   and  com- 
pensation should  be  made. 

On  the  10th  February,  1893,  Mr.  Foster  wrote  to  Sir  Julian 
I'auncefote  stating  that  charges  were  made  against  the 
"  Henrietta'' for  violation  of  sections  2S67  and  2808  of  the 
Revised  Statutes  of  the  United  States,  relating  to  Revenue 
laws,  and  the  schooner  was  thereupon  delivered  to  Captain  20 
Hooper  of  the  "Corwin"  with  instructions  to  take  her  to 
Sitka  for  trial  upon  the  latter  charge,  and  in  case  of  failure  to 
condemn  her  upon  the  charge  of  violating  the  Revenue  laws, 
she  was  to  be  turned  over  to  the  British  authorities  at  Victoria 
for  trial  for  violation  of  the  modus  vivendi,  and  stating  that  so 
far  as  he  knew  the  trial  had  not  then  taken  place. 

On  the  15th  February,  1893,  Sir  Julian  Pauncefote  wrote  to 
Mr.  Foster  stating  : — 

"  You  expressed  no  opinion  on  the  statements  of  facts  con- 
tained in  your  letter,  but  I  should  be  much  surprised  if  30 
you  did  not  share  my  views  of  the  extraordinary  proceedings 
which  it  discloses,  as  in  my  opinion  no  doubt  canbe  enter- 
tained for  a  moment  of  the  illegality  of  the  detention  of 
the  '  Henrietta"  at  Sitka.  I  venture  without  further  ins- 
tructions from  my  Government  to  submit  the  Ibllowing  obser- 
vations to  your  attention.  The  seizure  of  the  'Henrietta' 
in  Behring  Sea,  70  miles  from  land,  was  only  warranted  on 
the  condition  that  the  vessel  should  be  delivered  to  some 
British  autlu)rity  as  provided  in  the  modus  vivendi,  but  the 
vessel  having  been  seized  under  that  power,  was  then  forcibly  40 
drawn  within  the  jurisdiction  of  the  United  States  for  the 
purpose  of  enabling  a  totally  distinct  charge  to  be  preferred 
against  her." 

He  then  [joints  out  that  there  was  no  foundation  for  the 
charge  of  breach  of  the  revenue  laws  nor  justification  for 
seizure  on  that  head,  and  says — "  In  view  of  the  above  con- 
eideration  and  of  the  indisputable  fact  that  the  seizure  of  the 
'  Henrietta '  was  only  warranted  by  the  modus  vivendi,  and 
for  the  purpose  of  handing  her  over,  as  therein  provided  to 
the  British  authorities,  I  trust  that  you  will  move  the  Presi-  50 
dent  to  order  that  tiie  vessel  be  dealt  with  in  accordance  with 
that  international  agreement.'' 

In  reply,  Mr.  Foster  wrote  Sir  Julian  Pauncefote,  on  the 
2l8t  February,  stating  that  he  had  comuiunicated  a  copy  of  his 


60 


THE   HBMRIBTTA. 


163 


letter  to  tlie  Attorney  General  with  the  recommendation  that 
the  vessel  be  handed  over  to  the  proper  Uritish  authorities 
for  trial  under  the  7)iodus  vivenili ;  such  action,  however,  to 
be  without  prejudice  to  any  and  all  the  rights  that  the  United 
States  had,  or  might  thereafter  have,  as  regards  the  charge  of 
violation  of  the  Revenue  laws  of  the  United  States. 

On  the  15th  April,  Sir  Julian  rauncot'ote  wrote  to  Mr. 
Gresham  detailing  the  facta  connected  with  the  seizure  of  the 
"Henrietta,"  jiointing  out  the  duty  of  the  United  States  Gov- 

10  ernment  under  the  terms  of  the  inndus  vivendi  and  stating  : — 
"  It  is  clear,  therefore,  if  the  '  Henrietta  '  was  seized  for  vio. 
lation  of  the  modus  vivendi,  she  should  have  been  turned  over 
as  soon  as  practicable  to  the  Britisli  authorities,  which  alone 
had  jurisdiction  to  try  this  oftence  and  impose  a  penalty  for 
the  same.  Instead  of  this,  however,  she  was  forcibly  detained 
at  Sitka,  under  process  of  an  Americun  code  of  law  for  a  period 
of  six  months,  and  is  only  now  about  to  be  released,  in  conse- 
quence of  the  representations  of  Her  .Majesty's  Government 
and  on  the  conditions  and  reservations,  to  the  justice  and  pro- 

20  priety  of  which  they  are  unable  to  assent." 

And  further  he  adds  : — 

"Both  the  original  seizure  of  the  '  Ilcnriotta  '  and  her  de- 
tention for  so  long  a  period  after  seizure,  appeared  to  Her 
Majesty's  Government  to  afford  subjects  of  just  complaint,  and 
I  am  accordingly  instructed  to  point  out  that  the  seizure  was 
unwarranted  except  under  the  modus  vivendi,  and  was  only 
permitted  under  that  instrument,  on  the  condition  which  was 
not  fulfilled  in  this  case,  that  British  vessels  soized  should  at 
the  earliest  opportunity  be  delivered  to  British  authorities,  to 
30  which  authority  alone  has  been  reserved  the  right  to  try  the 
oftence  and  impose  a  penalty." 

And  further  on  : — 
— "  the  detention  of  the  vessel  from  the  4th  September  last  to 
a  recent  date  was  unlawful,  because  by  international  agreement 
the  United  States  Government  cannot  hold,  but  must  deliver 
over  as  soon  as  practicable  to  British  authorities,  a  British  ship 
for  violation  of  the  modus  vivendi." 

On  the  6th  June,  1893,  Mr.  Gresham  replied  to  the  last  let- 
ter, and  stated  the  modus  was  the  only  authority  under  which 

40  the  seizure  was  justifiable  and  seizure  under  it  involved  com- 
pliance with  its  terms.  "  I  have  to  admit  that  the  taking  of 
the  schooner  to  Sitka  and  her  forcible  detention  there  under 
process  of  the  court  ot  the  United  States  for  violation  of  the 
revenue  laws  was  an  infraction  of  the  international  agreement. 
I  regret  the  delay  to  which  you  refer  in  the  delivery  of  the 
vessel  to  the  proper  authorities  of  your  Government  for  trial, 
and  a  careful  consideration  of  the  tacts  constrains  me  to  with- 
draw the  reservation  mentioned  in  my  predecessor's  note  of 
the  2lBt  E'ebruary  last." 

50  Further  correspondence  took  place  as  to  what  disposal  should 
be  made  of  the  vessel,  and  in  answer  to  an  in(iuiry  on  the 
matter,  Sir  Julian  I'auncefote  wrote  to  Mr.  Gresham  : — 

"  I  have  now  the  honour  to  inform  you  that  in  reply  to  the 
above   inquiry.  Lord  Rosebery  has  instructed  me  to  request 


K.  1115,-, 
lino  35. 


I!.  1(151!, 
liiH'34. 


I!.  li;r,>i, 
liijr  1. 


.;   P 


1!.  ir.r.ii, 

line  III. 


164 


THE   IIENRIBTTA. 


K.  i(;r>s, 

linr  "w. 


R.  KWlt, 
line  50. 


that  the  '  irenrietta'  be  sent  to  Victoria  umlor  the  exact 
terms  of  tlie  modus  vivendi  or  be  left  in  cliarge  of  her  captain 
at  the  option  of  your  Government." 

On  the  2n(l  September,  1893,  Mr.  Greahara,  telegraphed  to 
Sir  Julian  Panncefote,  that  tlie  Attorney  General  informed  him 
that  the  libel  had  been  dismissed  and  asked  whether  it  was  the 
desire  of  the  liritish  Government  tiiat  the  vessel  should  remain 
in  charge  of  her  captain  or  whether  the  United  States  should 
send  her  to  Victoria. 

It  may  be  noted  that  this  statement  was  inaccurate,   as  tlie  jq 
record   at   .»!itka  discloses  the   fact  that   the   libel   was   not 
dismissed  until  a  month  after  that  date. 

Again,  on  the  4th  September,  1893,  Mr.  Gresham  wrote  to 
Sir  Julian  Pauncefote,  as  follows  : — 

"  I  have  just  received  your  letter  of  the  2nd  instant.  I 
handed  to  the  Attorney  General  a  copy  of  my  note  to  you  of 
the  6th  June  last,  that  he  might  take  the  necessary  steps  for 
the  release  of  the  '  Henrietta ; '  but  it  seems  the  libel  was  not 
dismissed  until  a  recent  date,  perhaps  a  month  ago. 

"  I  thought  that,  although  the  captain  of  the  schooner  and  .,q 
part  of  his  old  crew  were  at  Sitka,  it  was  my  duty  to  bring  the  " 
matter  to  your  attention  and  learn  the  pleasure  of  your  govern- 
ment as  to  what  should  be  done  with  the  vessel.     It  may  be 
that  the  captain  would  prefer  to  take  charge  of  her  where  she 
now  is." 

On  the  14th  December,  1893,  Mr.  Gresham  wrote  to  Sir 
Julian  Pauncefote  stating  : — "  I  wrote  on  the  2l8t  October  to 
the  Attorney  General  communicating  the  conclusions  reached, 
and  that  on  October  28rd  an  instruction  was  sent  by  the 
Department  of  Justice  by  telegraph  to  Seattle  and  by  mail  oq 
thence,  directing  Marshal  Porter  to  notify  the  captain  of  the 
'  Henrietta '  that  the  vessel  was  released  and  was  subject  to 
his  absolute  disposal." 


Ap.  B.  2S2. 


K.  1738, 
lini"  .50. 


line  45. 


Her  Britannic  Majesty  claims  the  following  items  of  damage 
as  resulting  from  the  premises  : 

l)c|iri-ciatiiiii  ill  value  (if  vi-sscl .*2,0(M)  (K) 

;i  liiKits  ilcstrcpyi'il  liy  wnriiis,  at  .'"i.sri  lacli . .  20ri  00 

Lus.s  as  slidwn  liy  Kxliiliit  S,  pape  108    913  00 

Legal  expenses  at  Sitka tl2  fiO 

lielyea's  hill  ri  pi-oi-eeilings  at  Sitka 113  00 

Adilitiunal  expense  fui-  taking  evii'eiice  at  \'ictni-ia.      ....  25  00 

Helyea's  eliai'Ke fjdO  ()() 

10">  skins  suld  at  Sitka,  at  .*15  a  skin 1,.')75  00 

2  skins  absolutely  destroyed  liy  rats,  at  S15 30  00 

Loss  un  313  skins  sold  for  ?11,  instead  of  i?15 1,252  00 

Lo.ss  of  use  of  "  lleiirietta"  for  3  niontlis,  Deeeiulier,  .Tan- 

nary  and  Kebruary,  at  *3(MI  a  iiiontli !MK)  00 

I'rotialile  amount  sill'  would   have  made  in  sealing  in  the 

year  1803 5,0UC  00 

Kxpeimes  inenrred  liy  I'inekney,  voyage  to  Victoria 50  00 

Kxi«-iisesat  Sitka,  say lo  00 

Kxiieiisps  at  Victoria (JOO  (K) 


40 


50 


TUB   UENRIP    TA. 


166 


10 


20 


30 


KxIU'Mhcs,  cost  iif  tri|i  liai'k  ti)  Sitka S    fK)  00 

KxiH'MHCH  at  Sitka  wliilHt  waiting  fi"'  clclivcry  (if  tlii'  ve.sscl ; 

ai-tiial  iMiard ' MH  00 


liiwB  of  tiiiKt  rtwaitiiiK  (Irliviry  of  vrswl  at  iJKN)  a  nioiitli. 
Harilwliips  suffiirc'il  liy  iiiastci' 


7IH)  IM) 
5IMI  00 


T.  J.  Ilaliipton,  ciKik,  (IctainiMl  at  Sitka  for  Id  iiioiitliH,  liirt 

ordinary  wiv({i'Hl»iiig  SlIO  a  iiioiitli (!I0  00 

Cost  of  his  provisions  (luring,  say  lli  niiintlis,  at  SIO I'_'0  00 

Hardships  HMlfcrcd  liyliiin 200  0(1 

Wni.  Klinicicr,  detained  at  Sitka  for  10  months,  his  ordin- 
ary wages  lieing  ^',\'}  a  ni(»nth 50t)  tK) 

Cost  of  his  provisions,  1'J  niontlis  at  •'SIO 120  00 

Hardships  s\ilfcred  hy  him 200  00 

C.  Ooering,  detained  at  Sitka  0  months  ;    ordinary  wages, 
ifX,     


21(1  IM) 
tiO  00 

an  00 

200  00 
1140  00 


Cost  of  iiis  provisions,  0  niontlis  at  -^In 

Value  of  passage  to  Viutoria.    ...    

Hardships  sutfered  liy  him 

Thorrisson,  mate,  10  months'  detention  at  .Sitka,  at  §(10. 

Cost  of  his  provisions,  12  months  at  $1(1 120  00 

Hardships  sutfered  hy  him 20(H«) 

Henry  .Tacolwon,  S  months'  detention  at  S."iO  a  month 4(MI  00 

Expenses  down  to  Victoria  '. 30  00 

Hardships  suffcre  I  liy  him 200  00 

Mobley,  hunter,  8  months'  d(  tention,  at  SS5  a  mimth 280  00 

I'as.sage  hack .'10  00 

Hardshilis  siilfeicd  liy  him 200  00 

■I.  C.  West,  8  months'  detention  at  .'?i)0 40')  00 

Passage  back 30  00 

Hardsliips  suffered  liy  him 200  00 

Hardslii|w  of  four  Indians  and  other  losses,  civch,  .*!2yO 1,000  (XJ 

I'erson.al  e\|M'nses  and  troulilo  of  CharU's  Spring  coming 

from  Kyiupiot,  and  looking  after  the  ships'  alfairs 500  00 

821,404  10 
Interest  on  all  the  almve  items  at  the  rate  of  7  per  cent 
fnnn  dat    of  loss  until  payment. 


inl 


'   !1H 


Oil 


»flp^ 


P^"P 


TIFE  "OSCAR  AND  IIATTIIO." 
Claim  No.  28. 


K.  lllii. 


It.  nil, 
liiir  :tit. 


r.. 
•-',■1. 


Ap.  I'..  2111, 

liii.'  :is. 


A|..  I!.  L'JO. 


A  p.  i;.  -J  1(1, 

line  50. 


.\|).  r..  L'l.s, 

line  III. 


K,  MIL', 
lliii'»i. 


The  "  Oscar  and  Ilattie  "  was  a  rej^istorcd  Britisli  mhooiicr 
of  81  tons  bought  by  Jolui  L.  IVnuy,  at  San  Francisco,  in 
December,  1890,  for  -^10,000. 

In  Dec'ember,1891,8ho  was  transferred  by  ronny  to  the  Pacific 
Sealing  Company  (Limited),  who  owned  lierat  the  time  of  the 
the  seizure  liereinafter  referred  to.  In  the  spring  of  181)2,  slie 
was  fitted  out  for  a  sealing  voyage  on  the  southern  coast  and  IQ 
for  Behring  Sea.  The  total  sum  invested  in  her  by  the  Com. 
pany  when  she  was  ready  for  use  in  that  year  amounted  to 
$13,.365,  not  including  her  provisions  and  ammunition. 

When  she  started  on  her  voyage  to  Behring  Sea  about  the 
Ist  May,  1892,  it  was  not  known  that  the  modus  vircndi  of  1891 
expiring  in  that  month  would  be  renewed,  but  before  entering 
the  sea  she  was  warned  by  the  United  States  man-of-war 
"  Adams  "  that  the  mod.ushaiX  been  so  renewed.  In  consequence 
of  this  warning  the  schooner  did  not  enter  the  portion  of  Behring 
Sea  covered  by  the  modus,  but  proceeded  to  hunt  seals  on  the  20 
Russian  side.  She  completed  her  season  in  the  neighbourhood 
of  Cojiper  Island,  and  started  from  thence  on  her  voyage  to 
Victoria.  On  her  way  back  being  short  of  water  she  touched 
at  Attou  Island,  distant  over  600  miles  from  the  Pribiloffs, 
Whilst  there  engaged  taking  in  a  supply  of  water,  she  wag 
seized  by  the  United  States  ship  "  Mohican  "  for  an  alleged 
breach  of  the  Hindus.  She  was  taken  to  Ounalaska,  where  she 
was  handed  over  to  the  Commander  of  Her  Maje.?ty's  ship 
"  Melpomene,"  for  trial  under  the  terms  of  the  mmlits.  She 
was  then  sent  to  Victoria,  handed  over  to  tlie  Collector  of  30 
Customs  and  proceeded  against  for  a  breach  of  the  modus  in  the 
Admiralty  Court  of  Britisli  Columbia.  The  pleadings  in  the 
case  will  be  found  on  page  217  of  Appendix  B. 

On  the  5th  January,  1893,  Judgment  was  given  by  Sir 
Matthew  Bogbie,  condemning  the  schooner,  her  equipment 
and  everything  on  board  her,  as  forfeited  to  Her  Majesty  for 
contravention  of  the  Act  known  as  "  Seal  Fisheries  Act  of 
1891,"  which  provided  for  the  enforcement  of  the  modus. 

Upon  this  judgment  an  appeal  was  taken   to  the  Supreme 
Court  of  Canada,  and  on    that  appeal  the   judgment  of  the  40 
Amiralty  Court  was  reversed. 

In  the  meantime,  the  schooner,  her  tackle,  apparel,  furniture 
and  cargo,  were  sold  at  a  heavy  loss  to  her  owner,  who  in 
addition  was  put  to  about  $2,000  costs  in  connection  with  the 
litigation. 

The  evidence  given  at  the  trial  before  Sir  Matthew  !>egbie 
established    clearly    that    the    schooner   had   not   taken,   or 

166 


TUB   0»CAR   AND    nATTIE. 


leT 


attempted  to  take  any  seals  in  Uohring  Sea  in  that  year ;  that 
nho  touched  at  Attou  iHlanil  for  tlie  solo  purpose  (which  was 
perfectly  legal)  of  taking  a  supply  of  fresh  water;  that  there 
were  no  seals  to  he  taken  at  or  near  Attou  Island  ;  that  all 
these  facts  were  at  the  time  kiiow!i  to  the  captain  of  the 
"Mohican,"  and  further  that  he  knew  and  believed  that  the 
schooner  had  no  intention  of  attenijiting  to  violate  the  nioilus, 
Thomas  Turpcl,  master  of  the  "Oscar  ami  Ilattio"  states 
that  he  continued  to  seal  until  the  latter  end  of  August.     J  To 

in  was  then  short  of  water  and  prepared  to  go  home,  and  to  give 
u})  scaling  ;  that  he  had  finished  scaling  then. 

At  the  end  of  his  sealing  operations  he  was  off  Copper 
Island.  This  was  on  the  30th  of  August.  He  bore  away  for 
Attou  Island,  which  was  the  westernmost  island  of  the  Aleutian 
group  ;  he  went  in  to  Ciotzleb  harhm ;  r,  it  being  the  only  one  that 
he  could  make,  lie  says  he  wont  u)  Gotzleb  simply  for  water ; 
there  was  a  strong  wind  and  he  could  not  get  round  the  south 
side  of  the  island  (which  would  have  been  outside  of  Behring 
Sea).     At  about  7  or  8  a.m.  he  went  ashore  at  Attou  Island  to 

^0  see  if  he  could  find  a  suitable  place  to  take  water ;  at  about  1 
o'clock  ho  began  to  till  the  tanks  ;  and  at  about  o  in  the  evening 
a  boat  from  the  "Mohican"  came  to  seize  him.  "Ensign 
Harrison  was  in  charge  of  the  boat  and  he  seized  me  for  being 
at  anchor  inside  JJehring  Sea ;  that  is  what  ho  told  me." 

On  the  Ist  September  he  (Turpel)  went  around  to  see  Cap- 
tain Johnson,  of  the  ".Mohican."  lie  protested  against  being 
seized  ;  wanted  to  know  what  he  had  done  to  cause  the  seizure; 
stated  to  the  captain  that  he  was  slmrtof  provisions  and  water 
and  was  on  his  homeward  passage.  Captain  Johnson  said 
30  "  he  was  very  sorry  that  he  had  to  seize  him  for  being  at 
anchor  in  a  port  he  hail  not  cleared  for,  and  for  being  in 
prohibited  waters." 

"Q.  Just  tell  the  conversation  between  you,  captain? — A. 
I  protested  against  it;  that  is  all  I  could  say.  I  told  him  that 
I  would  not  bo  in  there  at  all,  only  just  for  wanting  water; 
that  I  had  finished  my  scaling,  and  liad  no  provisions  to  stay 
any  longer,  and  had  just  enough  to  carry  me  to  Victoria. 

"Q.  Was  anything  8:iid  about  seals? — A.  lie  said  that  ho 

did  not  believe  that  1  had   been  sealing  at  all ;  he  did  not 

40  believe  I  had  been  in  to  seal  there,  but  fully  believed  that  I 

came  in  there  for  the  sole  and  whole  purpose  of  getting  water." 

lie  further  states  that  he  had  never  lowered  a  boat  in  the 
Behring  Sea  ;  that  the  seals  that  he  had  on  board  were  taken 
ott'Copper  Island,  in  the  North  Pacific  Ocean.  Outside  of  going 
to  Attou  Island  for  water  ho  had  not  lowered  a  boat  in  Behring 
Sea,  nor  had  he  shot  or  killed  seals  there. 

lie  then  describes  being  sent  to  Ounalaska  and  says  : — 

"I  went  on  board  the  '  Yorktown  '  and  saw  Captain  Evans 
(the  chief  officer  of  the  American  fleet  there.) 
oO      "Q-  What  occurred  with  Captain  Evans? — A.  lie  told  ine 
what  Captain  Johnson  had  seized  me  for. 

"Q.  What  was  that? — A.  Being  in  prohihited  waters  aTid 
found  in  a  port  I  had  not  cleared  for." 


A|' 

II. 

•.':f.', 

lilM 

lUI. 

,\|. 

It. 

•.M;t. 

lIlM 

20. 

\l..  II.  2II». 


.\l..  II. 


'.'L'll. 
Ill '.I. 


.\i>.  n.  •-'L'l. 


liiii'tld. 


2-.'I, 


.\l<.  v..  -Jii. 


'  1   i» 


mm 


168 


THE   OSCAR   AND   IIATTIE. 


A|i.  II. 
liiii'  IMI. 


lilH'  'JO. 


A|..  li.  -'If. 


Ajrain  lie  states  : — 

Ap.  I!.  •.".':i.  "  I  went  ill  to  Attou  to  >jot  wiitor,  a^*  it  wan  the  nonrost  I  could 

j:;ot  to.  I  could  not  yet  in  to  C'opjii'r  IhIuikI  and  1  could  not 
f<et  in  to  tlio  Boliring  iHlaiidn. 

Again  ho  says  — 

"  I  was  not  aware  that  there  were  any  rookeiicH  or  Hoalinjj 
grounds  at  Attou  [wlniid  :  I  never  lookc(l  for  any. 

"(J.  Mas  it  heen  a  general  sealing  place  or  jnirticular  sealing 
place? — A.  Not  to  my  knowledge;  never  heard  that  it  was." 

-"-'.  His  log  book  was  jmt  in  evidence  and  corroborated  the 
stateniontH  maile  by  him.  10 

-':«'.  Captain  Johnson,  being  examined  on  behalf  of  the  prosecu- 

tion, states: — "Attou  Island  is  on  the  very  verge  of  the 
Behring  Sea,  but  it  is  in  the  inside." 

"Q.  Why  did  you  cause  that  vessel  to  he  sei/.cd  for  being 
within  prohibittul  waters  ?  A.  Waters  prohibited  by  the 
modus  viri7i(li  for  the  purpose  of  sealing  with  sealing  outfit, 
and  seal  skins  on  board." 

Again,  being  examined  as  to  the  conversation  which  took 
jilace  between   Tiirpel  and  himself  on   the  1st  September,  he 

says  :— 

"  I  had  a  conversation  with  t'aptain  Turpel  the  next  morn-  20 
ing  ;  I  do  not  remember  that  Captain  Turpel    told  me  ho  had 
no  idea  to  eonio  in  the  sea  for  the  purpose  of  killing  seals. 

"  il.  Didn't  lie  speak  something  of  the  kind  or  words  to  that 
effect  ?  A.  He  spoke  words  to  that  effect,  that  he  was  cross- 
ing this  narrow  angle  in  the  Bchring  Sea  here,  as  the  chart 
shows,  and  he  came  in  there  for  water. 

****** 

"  Q.  And  didn't  he  tell  you  that  he  canu'  from  the  noigh- 
bourhdod  of  Copper  Island  '!  A.  Whether  be  told  me  or 
whether  I  obtained  the  information  from  Mr.  Harrison,  I  don't 
know.     1  certainly  liad  the  information.  30 

"Q.  You  certainly  had  that  information  that  the  captain 
had  lately  come  from  the  neighbourhood  of  Copper  Island?  A. 
Almost  immediately. 

Copper  Island  is  about  200  miles  from  Attou. 

"  Q.  Didn't  Captain  Turpel  also  mention  to  yon  that  he  came 
in  there  to  get  some  water?     A.  I  think  so. 

****** 

•j.'Ci,  "  Q-  That  was  your  understanding  at  the  time?  A.  At  the 
time,  that  he  came  in  there  for  water. 

****** 

"Q.  You  dont  think  that  they  were  out  sealing  round 
Attou  ?     A.  I  do  not.  ^q 

"  Q.  Is  it  not  a  iaet  that  there  were  no  seals  in  the  neigh- 
bourhood of  Attou?  A.  I  don't  think  we  had  seen  any  within 
a  couple  of  hundred  miles  of  it,  perhaps  more. 

"  Q.  Is  it  not  a  matter  of  notoriety  that  the  neighbourhood  of 
Attou  is  no  place  for  seals,  thiy  do  not  frequent  that  locality  ? 
A.  I  don't  know  aliout  notoriety  or  not. 
234,  "  Q.  You  don't  know  from  notoriety,  hntyou  didn't  see  any 

within  200  miles?     A.  1  should  say  within  200  miles. 

"  Q.  Didn't  the  captain  of  the  '  Oscar  and  Ilattio'  tell  you 
that  he  was  on  his  way  to  Victoria?     A.  I  should  say  so,  yes.  jjo 

"  Q.  Anddidn'the  tell  you  that  his  sealing  was  over?  A.  I 
don't  remenber. 


A|. 

lilM 


li. :;;!:(, 

IT). 


A  p.  li. 
line  f)7. 


A|..  H. 
liiii-  22. 


TIIK    ()8("  t    ANIi    MATTIK. 


I  ()!) 


"  IJ.  Yoli  don't  ronioinlicr  ?  A.  It  is  my  iinjutsftion  now 
lliut  tliis  sn  iHiiM  wa^  priiitic!illy  dvcr,  and  that  lu'  was  on  liia 
way  lioMic  f'rnin  ('t)|i|i('r  Inland. " 

NVilliani  Harrison,  tliL' oflicer  wliout'tuivlly  Huizod  tlio  "Oscar  \|>. 
atal  Hattii',"  statcn  that  when  hcHciztMl  her,  one  of  tlic  ImatH  wan '"" 
making'  oll'troni  tlio  shore  witli  two  inon  in  it  ;  t ho  rent  of  the 
lioats  wtMv  limiting  at  the  storn,  the  jfuiw  wore  hi  tlm  ruckn  in 
thiM-altiii  ;  ho  didn't  notico  any  guns  in  tho  boats. 

'!'hc  t'olh)win,if  is  Croni  his  oviihsnoo  : — 

10  "  ^i-  '**  '*  ""'  "''>'■'  'l"'t  thoro  aro  no  seals  in  the  uoighl)onr-  \|.. 
hood  of  , At  ton?  .'\.  I  I'ainiot  say  that  it  is  a  fact.  I  don't'"" 
think  there  aro  any. 

"(2.  Yon  don't  think  thcr.'  aro  any  soals  in  Attmi?  Vou 
didn't  tiiink  thoy  had  those  boats  down  at  tho  stiTii  for  tho 
purposo  of  sealing,  did  you '.'     A.   I  did  not. 

"(J.  When  yon  soizod  that  ship  were  thoy  in  the  act  of 
briiif^iny  water  from  tiie  shore?  .\.  A  boat  was  coining  from 
shore  from  tho  direction  of  a  stream  of  wator. 

"  (i.    Did  tile  ('aptain  of  tho  ship  toll  yon  that  ho  was  taking 
20  on  water  tiioro?     A.   Ho  did. 

"  (i.  Did  yon  givo  him  instrnetioiis  to  go  on  taking  his 
wafer?     A.   I  don't  rcmondicr  ;   I  made  no  objoetion  to  it. 

"Q.  i)i<l  the  captain  of  the  ship  toil  you  that  ho  iiud  just 
conio  in  thoro  from  tiie  noighbourhood  or  Attou  Island?  A. 
Ho  did. 

"(i.  And  tliatholiad  lett  the  noighbourhood  of  Copper  Island 
two  or  tliroo  days  before  ?  A.  Yes,  si i.  I [e  said  lio  had  been 
hunting  in  tiie  neighbourhood  of  C4)ppor  Island. 

"(J.  And  that  he  had  tiot  boon  fishing  in  Hehring  Soa  at  all 
ao  that  is  so  far  as  the  prohibited  jiortion  of  Meliring  Sea  is  I'oii- 
cerned  ?     A.   He  told  mo  ho  had  not. 

"Q.  He  told  you  that  he  had  not  and  that  he  had  simply 
gone  to  this  harbour  for  wator?     A.  Yes, 

"Q.  That  lie  was  short  of  wator?     A.  Yes,  air. 

"  (i.  Did  ho  tell  you  that  he  w.is  on  his  way  to  Victoria? 
A.   Yos,  sir. 

"  Q.  Aud  that  his  fishing  season  was  over,  and  that  his 
sealing  was  over  at  the  time?  A.  Ho  may  have  told  me  that, 
but  I  don't  remember. 
40  "Q  Did  ho  also  toll  you  that  ho  was  >hort  of  provisions? 
A.  It  was  my  understanding  that  ho  had  enough  of  provisions 
to  go  to  Victoria  direct. 

"  (i.  It  was  enough  to  go  to  Victoria  diroit  and  nothing 
more?     A.  Nothing  more. 

"  ti.   Would   it  have   boon  neees.«ury  to  take  so  many  boats  a;. 
as  that  to  take  water  ?     A.  If  ho   wore  in  a  hurry  to  wator, '"" 
why  of  course  it  would  bo  bettor  to  take  all  his  boats.     It  is  a 
hard  matter  to  obtain  fresh  wator  at  that  place,  and  of  course 
he  could  work  then  all  his  boats  at  one  time  if  ho  wanted  to." 

,'iO      This  evidence  was  corroborated  bv  .losenh  Hrown.  ,^i' 

Upon  this  evideuce  the  Supremo  ('ourt  of  Caniula  hold  that  Ap 
there    was  no  ground    for  seizing  or   prosecuting  the  vessel.  "" 
There  is  now  atlditional   evidence   which  conclusively  shows 
that  the  seizing  otHcor  at  the  time  he  seized  the  vessel  did  not 
really   believe  that   any  broach  of  tho   nunlns  had  been  com- 
mitted. 

(.)n  the   3Ist    .Xugust,    189"J,   (Jai)tain    Johnson,    wrote    to  ij. 
Commander  Kvans  : —  "" 

"  Sut, — Yesterday,  1  seized  tho  schooner  '  Oscar  and  Ilattio,' 
of  Victoria,  IJritisli   Columbia,  at  anchor  in  liotzlob  Harbour, 
li  S—-2-2 


11.  2:17, 


i:!!i, 

!.M, 


iti:> 
'  11(1. 


170 


THE   OSCAR    AND    IIATTIK. 


K.  141li, 
lini-  -.'L'. 


A  p.  li.  •-':> 


Ai.    I! 


oiitheHegromulfl  : — (1st)  violation  of  tlie  United  Statca  Lievcniio 
laws,  as  being  illegally  in  tlie  United  States  piirt8,  (2nd)  viola- 
tion of  the  same  law  in  having  traiisfiM-ied  seal  skins  to  and 
receiving  supplies  from  the  '  Co(iuitlain,'  (•>'''/)  ILiniiii/  oti 
hnard  'J76  skins  aixl  a  fi'mpJcte  sioli»(j  outfii  in  violation  of  the 
modus  vivtni/i.'' 

Again  on  the  10th  Sefttember,  18!t2,  Commander  Evans 
wro'a  to  the  Secretary  of  the  Xavy  a  letter  containing  the 
folh.wing ; — 

"  During  the  hitter  part  of  August,  I  had  sent  the  '  Mohican  '  |() 
to  the  vicinity  of  Atton  island  to  ajipreluMid  and  capture  any 
sealers  from  the  Russian  side,  who  niiglit  Ije  found  in  that 
vicinity.  I  feared  that  some  of  the  schooners  after  wati-ring 
at  Atton  would  in  case  of  good  weather,  stop,  for  a  few  days 
sealing  in  Hehring  Sea,  which  I  determined  should  not  he 
done,  anil  at  the  fame  time  I  wished  British  schooners  to 
understand  that  th  y  could  no  longer  make  a  convenience  of 
American  ports  illegally  for  carrying  on  their  sealing  opera- 
tions. On  my  arrival  here  (Oumdaska)  *  *  ^  *  1  found 
the  'Oscar  and  Ilattic '  in  port  having  l)een  captured  at  20 
Gotzleb  Harbour,  a  snudl  watering  port  on  the  Island  of  Attou, 
by  the  *  .Mohican  '  on  September  Ist,  and  sent  here  in  charge 
of  an  ofttce-  ''id  prize  crew.  Wlirn  '(ipturtil  she  had  on  hoard 
27ti  fin'  seal,  skins,  tcikm  on  tlw  coast  of  Japo)),  and  a.  fall 
scaling  outfit." 

These  letters  which  were  not  before  the  Canadian  courts  prove 
the  fact  that  the  schooner  was  seized  not  for  a  breach  of  the 
moilus,  but  for  two  charges  ot  contravention  of  the  Revenue 
laws  of  the  L'nited  States,  neither  of  which  had  any  founda- 
tion whatever  in  law  or  fact,  and  u[p(>ii  a  charge  not  of  having  30 
broken  the  terms  of  the  ?«ii(/((.s-,butof  having  a  niiiidiert>f  sea 
skins,  &c.,  on  board,  which  is  no  breach  thereof. 

]t  will  be  noted  that  by  the  terms  of  tlie  )no<lus  of  1892,  the 
ottence  "is  killing  or  atteuipting  to  kdl  fur  seals  in  prohil)ited 
waters."  It  is  not  an  oifence  against  the  modus  to  h'lve  seal 
skins  or  a  sealing  oullit  on  board.  The  fact  of  the  seal  skins 
01  outlit  being  on  I'lmrd  is  material  only  under  subsection  .">  of 
section  1  of  the  Seal  Fisheries  Bchring  Sea  Act  of  l.S'.U,  where 
it  ig  stated,  "  if  a  Mrit'sh  ship  is  found  within  iieh ring  Sea, 
having  on  boai'd  thereof  fishing  (u*  shooting  implements  or  seal  40 
skins  01'  bo(li(^s  of  seals,  it  sIimII  \\o  on  ilie  owner  or  master  of 
said  ship  to  pro\e  that  tli(>  ship  was  not  used  or  employed  in 
coiilravention  of  this  Act  "" 

It  is  ap]iarenl  that  the  rommander  oi  the  "  Muhienn  '"  at  the 
time  he  iradc  the  seizure,  had  before  him  ample  evidence  to 
satisfy  his  mind,  and  as  a  tad  he  was  satisfied  that  the  seal 
skins  on  board  had  not  boon  taken  in  IJehring  Sea,  and  that 
the  vessel  was  not  there  for  the  purpose  of  catching  seals. 

It  may  further  be  noticed  that  the  instructions  gi\eii  by  the 
United  Slates  Xavy  l)e|.artnient  went  beyond  the  terms  of  the  ,',() 
nioilus,  in  authorizing  seizures  nut  (hereby  ciiiiteni[ilated. 

These  instructions  are  found  on  page  27"J  of  Appendix  H, 
and,  as  can  be  siM'n,e.xcee(lcd  the  terms  of  the  nimliif,  in  taking 
away  from  the  cominanders  nt  the  revemie  cutters,  oi'  nu'ti-of- 
war,  the  discreticpii  wITn^h  they  should  have  e.xcrcised  in  the 
nuitter. 


TUB   OSr\R    AND    llATTIi;, 


171 


Tlio  instnictioiis  continued  tlie  following  clansc  :  "Any 
vessel  t'onnd  to  he  or  to  Inive  l)eon  emiiluyed  in  seiiling  witliin 
the  iirohihitcd  waters  of  l>oliring  Sea,  wliethor  with  or  without 
warning"  (ao  far  the  instructions  are  correct),  "and  any  vessel 
found  therein,  whether  warned  or  not,  having  on  board  inijile- 
nients  for  taking  seal,  or  seal  skins  or  bodies  of  seals  will  be 
seized."  And  further,  that  ,he  commanding  oilicer  after 
making  the  seizure  siiall  hand  the  vessel  over  to  the  British 
authorities. 

10  The  instructions  therefore  amounted  to  a  'command'  that 
a  seizure  should  be  nuiile  whenever  seal  skins  or  sealing  imjile- 
ments  were  found  on  board  of  a  siii]i,  regardless  of  the 
eomnianding  otHcer  bt'ing  satisfied  tlial  the  ship  was  not 
employed  in  contravenlinn  nf  the  nioilan  i>r  of  tiie  Act  relating 
thereto. 

It  follows  that  tlie  sMziirc  of  the  "Oscar  and  Ilaltie"  was 
made  witliout  rea:;ii.i''.)le  or  probable  cause,  and  in  violation  of 
and  against  the  terms  of  the  modus  virciuli  of  1892,  and  that 
tliis  is  a  case  where  full  compensation  should  bi'  given. 

20  The  judgment  rendered  by  Sir  Matthew  Begbie  can  in  no 
wa}'  be  urged  as  evidence  of  there  being  a  primn  facii)  case  iu 
favour  of  the  seizure,  firstly  because  as  sliown  above,  the 
United  States  had  tailed  to  place  before  him  all  the  material 
facts;  secondly  because  the  seizure  was  not  made  for  reasons 
coming  witliin  the  provisions  of  the  modus ;  and  thirdly, 
becau.sc  the  arrest  and  seizure  being  wrongful  at  its  inception 
no  judgment  can  make  it  good. 

The  vessel  as  before  stated  was  sold  under  legal  process  with 
her  gear  and  sealing  outiit,  all  of  which  realized  §4,550  only ; 

30  the  seal  skins,  however,  realized  the  full  value.  The  moneys 
were  paid  into  court  and  afterwards  refunded  to  the  owner  of 
the  shiii.  The  claim  is  limited  to  the  loss  occasioned  iiy  tlie 
forced  sale  of  'he  ve.isel  and  her  eiiuipment  and  costs  of  litiga- 
tion. 

iVrsonal  am',  (jther expenses  were  incurred  in  tlu^  preparation 
and  invseiitation  of  the  claim  [irior  to  the  appointment  of  Ibis 
Commission. 

Tier  Britannic  .Majesty,  tli.Tci'ore,  claims  the  following  dam 
ages  as  resulting  from  the  premises  : — 


\|..  I'..  -Ji-.L'. 

liiii'  .Ml. 


R.  u:l'. 
line  111. 


fn 


50 


I.its^  t.II   \t>^fl  illxl   nllltil,     . 


I  'ii~l   clf  lili^'Mti.PM  IIVIT  ami  ^illlVr  I  111'  tllNrll  I'lists 
r.llvraV    cluilVK     

'riliif  iilicl  r\|M  iis.s  iif  iiuiilM^;ihi;  ouiiiT 


.S   S.SI.'i  (IK 

'J, ("III  III! 

I'M  I  Mil 

;<iHi  INI 
sii,:ttr>  III! 


lull  H'sl  "11  all  llii'  Ml>nv  ili-111,1  al  tlif  lalc  iif  7  |"T  (■•nt  fiiuii  tlir 
■  lali   Clf  lii<«  until  pavim  Ml. 


iML 


1892. 


TlIK  '•  WlNNIFRKl).' 
Claim   No.   24. 


H.  l.MI. 


K.  l.-.U. 
U.  l.".l.N-'.i. 


I!.  I.Ml'. 


The  •' WiiuiitVed  "  was  u  regislcrod  ISritisli  srluMmer  of  18 
tons,  measuring  42.  t'ei't  in  Iciigtli  by  \-\-l  feel  in  breadth 
and  ih  feet  in  deptli. 

On  20th  duly,  IS'.li;.  wirde  in  latitude  r)r>-22  north,  longitude 
It!  ,•35  west,  and  about  15  miles  from  Anak  Island,  the 
nearest  land,  the  sehooner,  her  tackle,  apparel,  furniture  and 
eargo  were  seized  by  the  Tnited  States  rcvemieeuttcr  "  l\ush  ",  10 
for  violation  of  the  nmdits  rlnmH  of  tiiat  year.  Ilor  pafiers 
were  taken  possession  of  aiul  removed  by  the  seizing  olheer  ; 
a  prize  crew  was  placed  alioard  her,  and  under  command  of  an 
officer  of  the  "  Rusli  "  and  in  tow  of  that  cutter  she  was  taken 
to  Ounalaska.  where  she  arriveil  on  21st  .Inly. 

From  the  time  of  the  seizure  uuHl  after  reaching  Ouna- 
laska, the  crew  of  the  "  Winnifred ''  w  as  transferred  to  and 
kept  on  the  "  Rush "  and  prevented  from  communicating 
with  (lustave  Hansen,  the  master  of  the  schooner,  ..  i  ■  was 
left  on  board  his  own  vessel.  oo 

On  27th  July,  while  at  Ounalaska  the  nnister,  ami  members 
of  the  crow  oi"  the  •' NVinniiVed  "  were  illegally  put  under 
oath  by  the  commander  ot  the  ••Rush'",  and  examined  "in 
regard  to  the  movements  of  the  scliuoiier  while  within  tlie 
waters  of  Alaska  Territory,''  and  tlie  "  Winnifred  "  was  tlu-n 
declared  seized  for  violation  of  the  Revenue  laws. 

On  2otli  duly,  the  commander  of  the  "  Rush  "'  reported  to 
his  superior  oflicer  as  follows  : — 

•'  Sir, — It  gives  me  pleasure  to  report  to  you  tluit  [  returned 
to  tlii.s  port  on  the  21.-t  instant,  having  in  tow  the  British  ;?0 
schooner  '  Wiiniifred,'  of  \'icloria,  B.C  ,  (i.  .Nf.  O.  Hansen, 
master,  which  vessel  I  found  on  the  evening  ol  the  20th  duly, 
18112,  in  tiie  act  ot  taking  fur  seals  in  the  prohibited  waters  of 
Rehring  Sea,  in  violation  of  the  agreement  entered  into  by  the 
I'nited  Statt's  and  Oreat  Britain,  and  in  dtdiance  of  the 
proclamation  of  the  IVesident  regarding  the  taking  of  these 
animals.  The  '  Winnifred '  was  found  near  Anak  Island, 
latitude  or)'22-45  X  ,  longitmle  lti:|-;5.")  W..  with  lioats  down 
hunting  and  at  the  hour  of  seizing  her  tour  (4)  dead  seals 
unskinned.  W(>re  on  deck.  The  nuister  admitted  that  eleven  40 
(11)  seals  had  been  taken  that  day  and  with  those  in  the  bold 
in  .sdt  he  had  on  hoard  a  total  of  forty-.six  (4H)  skins. 

" 'I'he  M'ssel's  outlit  consists  of  four  boats  complete,  nine 
guns  with  a  full  supply  of  ammunition,  stores  sufficient  to  last 
the  season,  salt,  etc.  Her  crow  consists  of  seven  persons 
including  master. 

•'  1  took  her  in  tow,  [tut  an  ollicer  and  lour  men  on  board, 
took  her  in  tow  and  brought  her  at  once  to  this  port,  whi're 
We  have  hi'f  ii\  charge." 

172 


THE    WINNIPllED. 


178 


"I  have  iiiiulo  a  (lecliiration  as  to  timo  and  eircmiistaiifos  of 
the  fiiiiliiifi'  of  tlic  schooner,  witli  a  coiniilete  list  of  all  articles, 
slores,  skins,  etc.,  found  on  hoard,  and  am  ready  to  deliver  Iut 
into  tlie  cnstody  ot  the  senior  olticer  coinniandini^  II(>r 
Maji'sty's  Naval  Force  in  these  waters  should  you  so  direct." 

On  July  '27th  he  I'urther  rei)orted  to  the  same  othcer  :  — 

"  Srii  : — I  resin'ct fully  rejiort    tny  return   to  this  harhnur  on  I! 
tlie  21st  instant  with  iny  coirimand,  ha\ini>'  in  tow  the   British 
wliooner   '  Wimiifred,'  (i.  ^^.  ().  Ilansi'n,  master,  of  Victoria, 

'0  B.C.  f  found  this  vessel  in  the  act  of  taking  fur  seals  in  the 
prohihited  waters  of  Jiehrinj;  Sea  on  the  20th  of  July,  18U2,for 
which  otl'ence  officers  and  crew,  also  vessi'l,  cargo,  8tt)re8,  etc., 
are  liable  to  at  rest  and  sei/.un^  under  the  nnnhifi  virouli  hotween 
the  I'nited  States  of  America  and  (ireat  Hritair.  " 

"  I  have,  however,  since  rny  re  ur.i  to  this  port  received  an 
otht'iaUn)mmunication  from  Captaie  C.  f*.  lloopcr,  commanding 
the  United  States  revemie  cutter  '(/oiwin"  dated  Sitka,  June 
30tli,  18112.  infoi'iniiig  me  that  the  ih'itish  schooner  '  Winnifred,' 
her  tackle,  stores,  outfits,  etc..  are  liahle  to  sei;cure  and  co?itis- 

20  cation  for  offences  conimitt(Ml  against  the  Revenue  laws  of  the 
Uuited  States,  piiov  to  entering  the  waters  of  13ehring  Sea.  1 
have  examineil  into  the  case,  and  find  tluir.  the  master  and 
crew  are  guilty  of  violating  the  Revenue  liws,  in  this,  tluit  the 
said  Br'tish  schooner  '  Winnifreil,'  of  Victoria,  1>.('.,  (i.  M.  O. 
Hansen,  master,  did  enter Toidvi  Hay,  Afoganak  Island,  Alaska, 
on  the  18th  day  of  -lune,  1S92,  without  making  report  and 
entry  at  United  States  custom-house  at  St.  Paul,  Kodiac 
Island,  Alaska,  the  jiort  of  entry  for  the  district,  in  violation 
of  sections    277.'i,    2771   and    ;?10P    Revised   Statutes   of  the 

30  United  States.  Also  that  the  saiil  schooner,  her  master  and 
crew,  received  at  said  Tonki  Hay,  on  the  20th  day  of  June, 
1892,  coal,  corned  heef,  and  [xitatoes  from  the  British  schooner 
'Lihhie'  and  '  \'enture  ' — violating  section  2808.  Also  that 
the  said  sehooni'r,  master  ami  crew,  did  on  the  22nd  instant 
discharge  from  the  '  W^imiifred  "  ami  put  on  hoard  th(>  British 
schooner'  Favourite'  at  ihe  same  place — Tonki  Bay,  115  fur 
seal  skins  to  he  taken  to  N'ictoria,  B.C..  in  violation  of  sections 
2St;7  and  2-^ti8  Revised  Statutes,  United  St.ites.  And  for  all  of 
which  offences  the  vessel,  her  tackle,  appai^el,  etc.,  were  liahle 

"to  to  seizure,  and  the  master,  ofticers  and  rew,  to  arrest  and 
punishment  at  any  time  it' found  within  the  jurisdiction  of  the 
United  States:  see  Woolsey's  International  Law,  page  374, 
Sec.  212  also  the  Act  of  Congress  170',!;  Manh  20tli. 

"I  claim  that  by  the  provisions  of  Sec.  2773,  Revised 
Statutes,  I  am.  as  coiniuanderof  a  rc^venue  cutter  of  tlu'  Unite  I 
States  empowered  to  arrest  the  liritisli  sdiooiu'r  '  Winnifred,' 
her  master  and  crew,  and  turn  them  over  to  the  District 
Attorney  for  the  Territory  of  .Vlaska.  at  Sitka,  for  trial  in  the 
United  States  District    Court  at   Sitka,    Alaska,  and    I  have 


l.".i:v 


50 


acordingly  made  formal  -ei/.ure  ol  the  ■  Winniired'  under  tlie 
above  laws. 

"  Should  the  said  '  Winnifred,'  her  master,  owners  and 
others,  not  he  liahle  under  the  ahove  (pioted  lawsi^if  the  L'nited 
Slates,  she  can  he  turned  over  to  I[er  Majesty,  the  Queen 
of  Knglaiid,  or  her  representatives  at  Victoria,  B.C.,  to  be  pro- 
ceeded against  under  the  //(n(/'/,s'  rin')hli  for  the  otfence  of  tak- 
ing fur  seals  in  the  prohihited  waters  of  Behring  Sea. 


174' 


TIIK   WINNri'RED. 


On  itaji;c'  lolS  of  the  Record,  the  followiiiijj  letter  is  also  to 
be  toil  11(1  :  — 

"  IJ.  S.  Revenue  Oiitter  'Riisli,' 

"Ouiuiiaska,  Alaska,  July  2S.  1892. 

"Hon.  Seoretary  of  tlie  Treasury, 
"  Wasiang'ton,  1 ).(.!. 

i;  i.M...  "Sir. — Referring  to  my  letter  of  .Fiily  24th,  18fl2.  in  which 

I  inforiicd  the  department  of  the  seizure  ot  the  IJritish 
schooner  Winnifri'd,'  G.  M.  O.  Ilaiiseii,  master,  of  N'ictoria. 
P).C.  and  of  my  intention  to  turn  the  vessel  over  to  the  senior 
British  naval  olticer  at  this  place  for  violation  of  tlie  terms  iQ 
of  the  existing  mn/lns  vivouU.  between  the  governments  of  tlie 
I'^nited  States  and  Great  Britain,  T  liave  the  honour  to  report 
that  subsequent  to  the  mailing  of  that  letter  the  United  States 
steamer  'Yorktown'  arrived  in  port,  and  at  a  conference  witli 
(-oinmander  Evans,  United  States  Navy,  I  called  his  attention 
to  an  othcial  communication  I  liail  received  from  (';iptain  0. 
L.  Hooper,  commanditig  revenue  cutter  '  Corwin,'  in  wliich  [ 
was  informed  that  the  schooner  '  Winnifred  '  was  liable  to 
seizure,  and  her  master.  G.  M.  0.  Hansen,  and  <'rew  to  arrest 
for  violation  of  the  United  f-^lates  llexenue  laws  previous  to  20 
entering  I)e!;ring  Sea.  Furthermore,  that  upon  investigating 
the  case  I  laid  secured  ample  testimony  from  members  of  the 
vessel's  crew  and  from  the  schooner's  ofKeial  log  book,  to  con- 
vict her  of  violation  of  sections  2778,  2774,  2867,  2868,  and 
3100,  United  States  Revised  Statutes. 

"  On  27th  .fuly,  Commander  Kvaiis,  U.S.N.,  and  Captain  A. 
H,  Chase  I'arr,  R.N.,  commanding  Her  Majesty's  naval  force 
in  HehringSea, met  b^' appointment  on  lioard  the  "Rush,"  and 
after  a  full  discussion  of  the  matter  it  was  agreed  on  the  part 
of  Captain  Parr,  that  his  government  wonhl  waive  the  right  30 
of  I'ustody  of  the  seized  vessel  until  she  had  been  tried  by  the 
United  States  courts  for  violation  ot  the  United  States  Revenue 
laws,  provided  that  in  case  of  failure  to  convict  her  on  those 
charges,  the  vessel,  lier  cargo,  outtit,  kc,  and  master  and  crew 
were  to  be  turned  over  to  Her  Majesty's,  the  (Jueen  o\'  Eng- 
land, representatives  at  Victoria,  B.C.,  for  trial  on  the  charge 
of  \iolation  of  ihe  terms  of  the  existing  yihulu.i  rivniilL 

'•  Acting  under  i'^structions  receixed  from  Commander  Evans, 
U.S.X.,  I  have  therefo;e  made  formal  seizureof  the  '  Winnifred  ' 
and  arrested  her  master,  (t.  M.  ( >.  Hansen,  anil  crew  I'or  viola- 40 
t'.on  of  the  Inited  States  Revenue  laws  as  above  cited,  and  as 
soon  as  tiie  ne  essary  papers  can  b(>  procured  she  will  be 
delivered  into  the  custody  of  Lieut.  Commander  Tanner, 
r.S.N.,  commanding  United  States  steamer  'Albatross,'  for 
delivery  into  the  hands  of  the  U)iited  States  District  Attorney 
at  Sitka. 

"  V^ery  resjjcet fully, 

"WASHINQTON    C.    COULSON, 

''Oiphnn  U.S.n.N." 


1;  ^i,;(  At  Ounalaska,  Hansen  imd  his  crew,  o.xi'ept  tlie  cook,  were 

put  aboard  the  *'  Albatross,"  a  Tnited  States  tisli   commission  rn 
steanur,  an<l  taken  to  Sitka.      There  Hansen  was  kept  in  jail 
until  inth  December,  when  be  was  bailed. 

On  the  I'.Uh  .lay  of  August,  i,s;i2,  the  I'nite.l  States  Dis- 
trict .Xttorney  at  Sitka  tiled  a  libel  of  information  against  the 
schooner  "  Winnifreil,"  Inr  boats,  tackle,  apparel,  furniture  and 
cargo  and  against  all   [jersunH   intervening  for    their   interest 


THE    WINNIVRKD. 


175 


therein  in  cases  of  forfeiture,  for  violation  of  sections  •28(]7-'^8(J8 
iinil  3100  of  tlie  Revised  Statutes  of  the  United  Htiites. 
In  the  siiiil  proceedings  the  said  schooner  was  changed  : 

1.  "That  on  the  :]Otii  .hiy  of  June,  1S!I2,  in  Toidci  Bay, 
A  fognak  Island,  there  was  unladen  from  the  schooncjr  '  Lihhie " 
1  sack  of  potatoes,  and  from  the  schooner  '  Venture' 10  hags  of 
Hour  and  a  large  (luanitv  of  coal ;  that  the  saul  nierchatidise  was 
transferred  to  and  received  on  hoard  the  sciiooner  '  Winnifred  ' 
and  at  the  same  time  and  pla«'  the  said  vessel  did  uidoad  and 
10  transler  to  the  schooner  '  Favourite'  a  large  amount  of  cargo, 
to  wit.  100  fur-seal  skins.  That  neither  the  said  schooner 
'  Winnifred  '  nor  any  of  the  said  vessels  at  the  said  time  had 
come  to  the  proper  [ilace  for  discharging  their  cargoes  or  any 
part  thereof,  nor  had  any  of  them  been  authorized  by  the 
proper  oiHier  ot  customs  oi'  said  district  of  Alaska  to  uidoad 
the  same  nor  was  said  unlading  made  necssary  by  any  accident 
or  distress." 

On  Se[)tend)or,  22nd,  1802,  Charles  Spring,  as  owner,  inter- 
vened  in    said    action  and   tiled  a  defence,  admitting  tlie  un- 

20  lading  of  certain  articles  and  setting  up  that  the  schooner 
"Winnifred"  was  a  foreign  vessel  I'cgistered  at  the  |iort  of 
Victoria,  Canada;  that  on  the  20tli  February,  1892.  the 
schixjner  cleared  for  a  sealing  voyage  to  the  North  I'acilic 
Ocean,  to  be  prosecuted  in  the  open  waters  of  said  ocean  and 
thence  to  return  to  the  said  port  of  Victoria;  that  the  said 
schooner  was  at  no  time  hound  to  the  United  States  nor  was 
she  laden  with  any  merchandise  bound  to  the  United  States; 
that  ill  the  prosecution  of  her  sealing  voyage  on  or  about  the 
13tb    June,  1802,  she  entered    Tonki  Bay   in   distress  for  the 

30  purpt)se  of  securing  fresh  water  and  that  without  any  intent 
to  violate  any  of  the  Customs  or  Hevenuc  laws  of  the  United 
States,  nor  with  any  intent  to  defraud  the  United  States  what- 
soever. And  subsei[Uently  thereto  she  transferred  certain 
articles  (siieciiied  in  the  defence)  to  the  schooner  "  Favourite'' 
and  received  certain  other  articles  (also  specified  in  defence), 
from  the  schooners  •'j,iid)ie"  and  "Venture,"'  and  alleging 
that  the  said  articles  were  so  delivered  and  ivceived  without 
any  intention  on  the  part  of  tlie  defendant  or  of  the  nnisters  or 
otHcers  ol' any  ot  the  said  schooners   to  violati^  any  of  the  Cus. 

4Q  toms  or  Revenue  laws  of  the  United  States  or  to  defraud  the 
United  States  in  any  manner  whatsoevei'. 

Such  proceedings  were  subse(|uently  had  in  the  said  at'tion 
that  on  the  1st  March.  180+,  the  court  found  the  facts  as 
above  set  out  in  the  libel  and  as  a  eon.lusion  of  law  detei'inined 
"that  the  schooner  ■  W'iiniifrcd,'  her  boats,  tackle,  ap|iarel, 
furniture  ami  cargo  are  fbrteiled  to  the  use  ot  the  United 
States," 

The  "  Winnifred  "  was  on  the  \<\  ( ),tobei'.  ISlU.  sold  under 
tiie  said  decree,  and    the   |vroe(>eds   ol    sale  tiansmittcd    to   the 

;,^)  United  States  Treasury. 


A|.,  II 


It.   1  11:7,  line 
III, 


1^  *l 


M' 


'i'iie    Commissioners   ha\e   ,11    the    outset    10  a>ceilain  as  to 
whether  the  seizure  ot'   the    •  Winnifred  "   was  a  valid  seizure. 


176 


THE    WINNIFRED. 


as,  it' it  was  illi'jjfai,  tlie  ITnitod  States  aiv  iiii(loul>ti<(]Iy  in  the 
wrong. 

Tliat  tlio  seizure  was  illegal  is  apiiareiit  tVotii  the  fiiet  that  it 
was  made  on  tlie  liigli  sea  outsidi^  of  the  territorial  limit,  and, 
therefore,  the  court  at  iSitka  had  no  riglit  or  jurisdiction  to 
condemn  the  vessel  tor  tlie  allegcil  violation  of  the  Revenue 
laws. 

Moreover,  even  if  the  court  at  Sitka  had  jurisdiction,  the 
Commissioners  are  empoweicd  under  the  Claims  ('on\ention 
to  revise  the  linding  of  tiie  court,  and,  fi'om  the  evidence  pro-  IQ 
dticed  at  Sitka,  there  was  clearly  no  infraction  of  the  Iteveuue 
laws. 

The  sections  of  the  IJcviscd  Statutes  'inder  which  the  lihel 
was  based  arc  the  following  : — 

"  Sec,  '281)7.  If  after  the  arrival  of  any  vessel  laden  witli 
luercliandKe  and  hound  tn  the  rniled  States,  within  the  lim- 
its of  any  collection  <listvici,  or  within  foui-  leagues  of  tlie 
coast,  any  part  of  the  cargo  of  such  ve.-sel  shall  he  unladen, 
for  any  purpose  whatever,  hefore  such  vessel  has  come  to  the 
proper  pla<e  for  the  discharge  of  hei'  cargo,  or  some  part  •_() 
thereof,  and  has  lieeii  there  didy  authorized  liy  the  pro[>er  otli- 
cer  ot  the  customs  tn  uidadi'  the  same,  the  masrer  of  such 
vessel  a.id  the  mate,  nr  ntlier  person  next  in  I'ommand,  shall 
respectively  he  liahle  tc  a  ]ienalty  >>['  one  thousand  dollars  for 
each  such  otience,  and  the  merchandise  so  unladen  sh.iU  he 
forfeited,  except  in  ease  of  some  utiavoidahle  accident,  neces- 
sity, or  distress  of  weather.  In  I'ase  of  such  unavoidable  acci- 
dent, necessity,  or  distress,  ihe  master  of  such  vessi'l  shall  give 
iiiiotice  to,  and,  tugether  with  two  ov  more  of  the  otlicers  or 
mariners  on  board  such  vessels,  of  wIkuu  tlu'  mate  or  other  :jo 
person  next  in  commaiitl  shall  b(>  one,  shall  make  proof  upon 
oath  hefore  the  colh'ctdr.  or  other  chief  otlioer  of  the  customs 
of  the  district,  within  ilie  limits  of  which  such  accident,  neces- 
sity, or  distress  happened,  or  belore  the  collector,  nr  other  chief 
otficer  of  the  collection-district,  within  the  limits  of  which  such 
vessel  shall  tirst  afferwaid  ariiv(\  if  tlu'  accident,  necessity,  or 
distress  luqipeneij  ii<it  within  the  limits  of  any  district.  i)Ut 
within  four  leagues  of  the  loast  of  the  I'nited  States.  The 
t-« ■Hector.  lU'  other  chief  utiicer.  is  hereby  authorized  and  re- 
^-ijired  to  administer  such  oath."  ^q 

•'  Section  •286S.  If  any  merchandise,  so  unladen  from  on  boaid 
any  such  vessel,  shall  be  |iul  or  received  into  any  other  vessel, 
except  in  thi'  lase  of  such  accident,  necessity,  ov  distress,  to  be 
«o  iiotitied  and  proved,  the  master  of  any  such  vessel  into 
which  the  niereliaiidise  shall  be  so  put  and  received,  and  every 
otiier  [lersoii  aiding  and  ass  sting  therein,  shall  lie  liable  to  a 
penalty  of  rr  ■blc  the  value  of  the  nierchandise.  and  the  vessel 
in  wiiich  they  shall  be  so  jiut  shall  be  forfeited." 

"Sec.  :!lo9.  Tlie  master  of  any  foreign  vessel,  laden  or  in 
ballast,  arriving  in  the  waters  ot  the  I'nited  States  from  any  ;,() 
foreign  territory  aMJacent  lo  the  northern,  north-eastern,  or 
north-western  trontieis  of  the  Initud  States,  shall  report  at  tlie 
ollice  of  any  -dlectoror  deputy  ■■oHector  of  the  euslonis,  wdiich 
shall  be  iieart-t  to  the  point  at  which  such  vcr-sel  may  enter 
such  waters;  and  such  veswcl  shall  not  proceed  laither  inland, 
either  to  unla4e  or  take  in  ea; go,  without  a  sieeial  permit 
fiom  such  collector  or  ilcpiry  collector,  issued  under  and  in 
aec(U(hince  with  such  general  or  special  regulations  as  the 
Secretary  of  the  Treasury  may  in  his  discretion,  t'rom  time  to 
liii»e.  [irescrilie  For  any  \iolatiou  ot  tliis  section  such  vessel 
shaM  be  sei/.e(    ;u,d  Ibrteited." 


^m 


THE   WINNIFRED, 


177 


Ab  can  be  seen  from  these  sections,  to  bring  the  "  "Winnifred  " 
within  the  provisions  of  the  Statutes,  it  was  necessary  that  she 
should  be  bound  for  a  United  States  port,  which  was  not  the 

case. 

The  acts  disclosed  by  the  evidence  are  the  following: — The  Ap- 1'-  x>-',3, 
"  "Winnifred  "  being  short  of  water  went  into  Tonki  Bay  for 
the  solo  purpose  of  taking  in  a  new  supply  of  water.  Whilst 
there  slie  met  with  the  "  Favourite,"  the  "  Libbie  "  and  the 
"  Venture,"  all  British  schooners  on  scaling  voyages  to  Behring 
10  Sea  and  not  bound  to  any  United  States  ports.  The  "  Favourite  " 
and  the  "  AVinnifred  "  belonging  to  the  same  owners,  one 
hundred  skins  were  transferred  from  the  latter  to  the  former 
and  a  few  i)rovision8,  tt)  wit : — a  small  quantity  of  potatoes,  a 
small  quantity  of  coal,  a  few  onions,  and  a  small  quantity  of  Ap.  H.  ar.i;?- 
corn  beef  were  made  a  present  of  to  the  orow  of  the  "  Winni- 
fred "and  for  their  own  use,  partly  by  the  "Venture"  and 
partly  by  the  '•  Libbie."  Tliere  was  also  a  tew  sacks  of  salt 
transferred  from  the  "  Venture "  to  the  "Winnifred"  for  the 
purpose  of  salting  the  skins  of  the  latter  vessel. 

■20  This  small  quantity  of  provision  was  thus  transferred  without 
any  compensation,  for  the  convenience  and  welfare  of  the  crew 
of  the  "  Winnifred,"  and  clearly  without  any  intension  of 
violating  the  Revenue  laws  of  the  United  States. 

There  was,  therefire,  error  on  the  part  of  the  Judge  at  Sitka 
in  finding  that  the  above  mentioned  vessels  were  bound  for 
the  United  States,  or  that  there  was  any  violation  of  the 
revenue  laws. 

Moreover,  the  "  Winnifred "  could  onlj'  be  seized   on  the 
liigli  sea  for  violation  of  the  modus  of  1892  ;   she  was  in  fact 
30  seized  for  violation  of  said  modus. 

Under  said  modus  it  was  incumbent  on  the  United  States  to 
forthwith  deliver  the  vessel  to  tlie  British  authorities,  and 
Commander  Parr  had  no  authority  whatever  to  give  the 
a1' jged  consent  and  thereby  waive  any  delivery  of  the  vessel 
to  the  British  authorities. 

Any  consent  such  as  alleged  on  the  part  of  Captain  Parr  was 
clearly  in  contravention  of  the  soction  3  of  the  modus,  which  is 
in  the  terms  following  ; — 

"  Every  vessel  or  person  oft'endiiig  against  this  prohibition  Ap.  b.  lmio. 
40  in  the  said  waters  of  Behring  Sea  outside  of  the  ordinary  terri- 
torial limits  of  the  United  States,  may  be  seized  and  detained 
by  the  naval  or  other  duly  commissioned  ofKccra  of  either  of 
the  high  contracting  parties,  but  tliey  shall  he  handed  over  as 
soon  as  practicable  to  the  authorities  of  the  nation  to  which 
they  respectively  belong,  who  alone  shall  have  jurisdiction  to  try 
the  oflenc?  and  impose  the  penalties  for  the  same.  The  wit- 
nesses and  iiroof  necessary  to  establish  the  offence  shall  also  be 
sent  with  tl  ^m." 

Captain  Coi'son,  tie  seizing  officer,  was  also  clearly  violating 

;>0  his  instructiom  in  acting  upon  this  alleged  conjent  of  Captain 

Parr,  as  will  be  found  on  reference  to  the   instructions  given 

u  8—23 


.•L^ 


178 


THE   WINNIFRED. 


A]..  II.  2ti'2.    to  the  Commander  of  the  United  States  Naval  force  in  Behring 
Sea: — 

"The  conimandinij  officer  of  the  vessel  making  the  seizure, 
will,  at  the  time  thereof,  draw  up  a  declaration  in  writing,  stat- 
ing the  condition  of  the  seized  vessel,  place  and  date  of  seizure, 
giving  latitude  and  longitude  and  circumstances  showing  guilt. 
The  seized  vessel  will  he  hrouglit  or  sent  in  charge  of  a  suffici- 
ent force  to  insure  delivery,  together  with  witnesses  and  proofs 
and  the  declaration  of  the  officer  making  the  seizure,  if  Ameri- 
can, to  Sitka  and  there  delivered  to  the  officer  ot  the  United  10 
States  District  Court  at  that  place,  and  if  Hritich,  to  Ounalaska 
and  there  delivered  to  the  senior  British  naval  officer  in  Beh- 
ring Sea.  The  master  of  the  seized  vessel,  her  mate  or  boat- 
swain and  such  portion  of  her  crow  as  can  conveniently  be  car- 
ried therein  will  be  sent  as  prisoners  with  the  vessel  to  suffer 
the  penalty  of  the  law." 

If  the  "  Winnifred"  had  been  delivered  to  the  British  auth- 
orities and  condemned  for  violation  of  the  mo(/«s  (u"ww</i  she 
would  have  been  sold  for  the  benefit  of  Her  Majesty  instead  of 
being  sold  for  the  benefit  of  the  United  States.  20 

It  should  be  further  noticed  that  the  United  States  have 
acknowledged  their  liability  in  connection  with  the  seizure 
and  condemnation  of  the  "  Wiiniifred,"  as  appears  from  the  fol- 
lowing letters : — 

(Mr.  Uhl  to  Sir  J.  Pauncefote.) 

"  Washinoton,  May  1,  1894. 

"  Excellency, — T  have  the  honour  to  acknowledge  the  re- 
ceipt of  your  note  of  the  17th  ult.,  in  which,  referring  to  the 
seizure  of  1891  by  a  United  States  man-of-war  in  Behring  Sea 
of  the  Canadian  schooner  'Winnifred,'  for  alleged  violation  of  30 
the  modus  vivendi  agreement,  you  ask  that  I  inform  you  of  the 
grounds  upon  which  this  vessel  was  seized  and  why  it  was  not 
handed  over  to  the  British  authorities  for  trial,  but  has  been 
kept  until  the  present  time  at  Sitka. 

"  A  copy  of  your  note  was  transmitted  to  the  Attorney 
General,  who  now  informs  me  that  he  does  not  tind  among 
the  files  of  his  department  a  copy  of  the  libel  against  the 
'Winnifred,'  nor  anything  from  which  a  history  of  the  suit 
can  be  derived,  or  the  present  situation  of  the  vessel  learned. 
He  further  states  that  he  has  written  to  the  United  States  40 
Attorney  for  Alaska  to  furnish  him  with  a  complete  report 
on  the  subject.  As  soon  as  I  shall  have  received  the  infor- 
mation now  asked  for  b}'  the  Attorney  General,  I  will  have 
the  honour  to  transmit  it  to  you  for  your  information. 

"  I  have,  &c., 


E.  F.  Uhl, 

"  Assistant  Secretary^' 


"Department  of  State,  WAsniNOTOff, 

"3l8t  October,  1894. 

"  S'.r, — Eoferring  to  the  Ambassador's  note  of  26th  June  50 
and  1st  August  last,  relative  to  the  case  of  the  British  schooner 
'  Winnifred,'  I  have  the  honour  to  say  that  she  appears  to  be 
nuch  out  of  repair,  if  not  absolutely  unseaworthy,   as  to 


so 


THE   WINNIFRBD. 


179 


render  it  impractical)lo  to  deliver  her  up  for  trial  to  a  British 
court  in  pursuance  of  the  terms  of  the  modus  vivendi. 

"  The  claim,  it  is  to  be  observed,  if  one  of  those  for 
damages  against  the  Ignited  States,  growing  out  of  the  con- 
troversy between  the  two  governments  as  to  fur  seals  in 
Behring  Sea. 

"  I  have,  &c., 

"W.    Q.   QUBSUAM. 
"W.   E.   GOSCHEN,   Esq." 


10  The  «' Winnifred  "  is  proved  to  have  been  worth  ?2,000  at 
time  of  seizure.  Legal  and  other  expenses  were  incurred  by 
her  owner  both  in  connection  with  defending  the  proceedings 
at  Sitka  and  in  preparing  and  presenting  the  claim  before  the 
appointment  of  this  Commission. 

Her  Britannic  Majesty  claims  the  following  items  of  damage 
as  resulting  from  the  premises  : — 


l{.  |>.  1751, 

line  -,7. 


Viiliic  (if  vcssfl 8  2,0()()  00 

4  l«ials      240  00 

1  fiiK  gun ()5  00 

20                  475  lbs.  Nhnt   33  25 

1  biironictcr 17  50 

1  cludnoniotiT 125  00 

Hlop  chest 46  00 

()5  ll)s.  iKjwdcr 12  00 

1  lot  i'in|ity  sliells  in  liuxcis  and  «iicks 18  00 

1 J  tons  salt  23  00 

4t)  fur  seal  skins 640  00 

1  lirl.  salmon 6  00 

1  box  biscuits   1  00 

30                2  mats  ricp 1  50 

1  box  raisins 1  00 

3  boxes  linio  juice 1  60 

3  sai-ks  beans 3  60 

1  box  candles 2  00 

1  can  coal  oil. 1  50 

2  kits  pickles       1  00 

G  sacks  flour.    . .       3  00 

3  tins  coffee,  15  lbs 3  75 

3  b()at  compasses 0  00 

40                 2  cases  corn  beef     4  00 

ill  tin  matclies 0  50 

lkegsuKar(l,-ulbs.) 6  20 

1  keg  syrup  (4  galls.) 125 

20  Nf.  gun  wads 10  n(l 

230  cartri.lges  (15-60) 6  00 

K  M.  primers      8  00 

1  re-loa<ling  tool  (Xo.  3.^) 1  00 

4  rifles  00  00 


R.  p.  1751- 
17.52. 

App.  li.  pp. 
330-331. 


180 


TUB    WINNII'nED. 


I!.  |..  I7:w, 

liiK'  III. 
H.  p.  \TM, 


(I  «llllt  Jfll'"* 

Hn^lii'H,  lliistiii^'H  iV  Hti'ailiJiaii's  liill. 

lirlvfii's  liill 

TinH'  anil  ('X|iriisrH  of  DU'iicr 


[||i>,'iil  iirri'Mt,  ili'ti'iitidii  mill  otliiT  liivrdsliliN  nf  tlii' iiwisti- 
anil  rrt-w     


M     :«H)  (Ki 

llW 

5(1 

IKt  (K) 

L'lK) 

IHI 

2,."ii«l 

(1(1 

«i  (i,ii.'):i 

((;■> 

liitiTi'^l  (111  all  tliii  aliiin'  id'iiis  at  tlic  rati-  nf  7  i"'i'  ci'iit  pi-r 
lumuiii  fruiii  (hitr  of  Iimk  until  payiiu'iit. 


THE  "WANDEllKR." 

CnAiM  No.  25. 

The  "  Wiuideror  "  was  a  British  schooner  of  25  tons,  registered  it.  i.mt, 
at  the  port  of  Victoria.  ''"'"' 

On  or  about  the  21st  day  of  ^farch,  18H0,  the  President  of 
the  United  States  issued  a  prdclaniatinn  warning  all  jiersoim 
against  entering  the  waters  of  Moiiring  Sea  for  the  [lurpose  of 
killing  fur-seal  and  making  known  that  he  was  to  cause  one  or 
10  more  vessels  of  the  United  States  to  diligently  cruise  the  waters 
of  Behring  Sea  and  arrest  all  persons  and  seize  all  vessels  found 
to  be  or  to  have  been  engaged  in  sealing  in  Behring  Sea,  and 
that  all  persons  found  to  be  or  to  have  been  engaged  in  killing 
fur-seals  therein,  would  be  arrested  and  punisheil  by  inii>rison- 
ment  or  tine  or  both,  and  that  vessels  so  employed,  tlieir  tackle, 
apparel,  furniture  and  cargoes  would  be  seized  and  forfeited. 

The  provisions  of  this  proclamation  were  carried  into  effect 
among  other  things,  by  causing  cutters  of  tlie  Uniteil  States 
Revenue  Service  to  cruise  the  waters  of  Behring  Sea,  during 
20  the  sealing  season  of  1889,  which  cutters  in  pursuance  of  said 
orders,  actually  did  seize  a  number  of  sealing  vessels  in  Behring 
Sea,  and  arrested  the  masters  and  crews  thereof.  Also  in  the 
years  1886  and  1887,  the  same  policy  liad  been  followed  by 
the  United  States  Government,  and  in  consequence  thereof  a 
large  number  of  vessels  engaged  in  sealing  in  Behring  Sea  had 
been  arrested  and  condemned,  their  masters  and  mates  impris- 
oned, and  their  crews  exposed  to  great  hardship  and  peril. 

In  the  spring  of  1880,  the  owner  lifted  her  out  for  a  sealing  i^  ,..,j; 
voyage  on  the  coast  in  Behring  Sea.     lie  did  not  take  a  stock ''"'  ""■ 
3Q  of  provisions  which  would  be  sufliiient  for  both  the  coast  and 
Behring  Sea  voyages,  but  carried  .?400  or  8500  in  cash  to 
reprovision    her  if  it   should   become  necessary.     The  places  u.  i.-,;;;, 
where  these   supplies  could  be  obtained  were  :    Unger  Island, '""'  ''"■ 
Yakutat,  Sitka,  or  Onnalaska.     She  had  a  crew  of  13  Indians  H.  i"i:t(i, 
and  2  white  men  with  6  hunting  canoes,  and  one  canoe  used 
by  the  mate  as  a  stern  boat. 

She  left  Victoria  in  February  and  sealed  on  the  west  coast  n.  im?. 
until  the  beginning  of  May.  She  then  started  for  Behring 
Sea,  with  the  intention  of  remaining  until  about  the  :i5th  K  I'l^w, 
,^  August.  The  vessel  engaged  in  sealing  on  the  journey  to  the 
sea,  when  oft'  Cape  Scott,  the  most  northerly  [loint  of  Van- 
couver Island,  some  of  the  Indians  who  had  been  out  hunting, 
heard  from  another  vessel  that  the  United  States  were  threat- 
ening to  make  seizures,  and  they  refused  to  go  any  further, 
after  having  ascertained  from  the  captain  that  in  case  of  seiz- 
ure and  tbrfeiture  of  the  vessel,  he  woukl  not  be  able  to  pay 
them  for  their  loss. 

181 


I 


'» 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


^/ 


^^% 


'/•. 


1.0 


1.1 


11.25 


UilM    125 

■HWu 


Hiotogiapiiic 

Sdeiices 
Corporation 


23  WIST  MAIN  STRUT 

WnSTIR.N.Y.  MSSO 

(716)I72-4S03 


nil' !'  ""  "" 

i 


182 


THE   WANDERBR. 


lini' :«). 


K.  1  •■>:«, 
liiii'  40. 


K.  I .".4 1, 
liiif  .111. 


H.  1544, 
lint!  4ii. 


K.  I.i;i7, 
liiK'  40. 


It  appears  that  Rorae  of  these  same  Indians  liad  heeii  in 
Beliriiig  Sea  in  previous  years  on  board  the  "  Anna  Beck  "  and 
"  Grace,"  when  these  vessels  wore  seizfld,  and  in  consequence 
of  the  seizures  they  suft'ered  great  hardshi{).  Captain  Paxton 
says : — 

"  They  said  tlioy  were  used  very  bad  at  Sitka ;  had  to  paddle 
in  their  canoes  almost  all  the  way  to  Victoria,  the  most  of 
them.  Some  of  them  got  drowned  on  their  way  to  Victoria. 
They  did  not  want  to  lose  their  time." 

August  Bjerre,  who  was  mate  on  board  the  ship,  states:        IQ 

"  The  Indians  were  scared  to  go  ;  they  were  scared  of  seiz- 
ure. Some  of  them,  I  believe,  liad  been  seized  before,  and 
they  had  been  talking  with  other  Indians  while  they  were 
away  from  the  vessel  out  hunting,  and  they  were  scared  of  the 
vessel  being  seized,  and,  as  they  knew  that  Captain  Paxton 
had  nothing  but  the  vessel,  they  were  afraid  that  they  '  ould 
get  no  pay  if  they  were  seized. 

"  Q.  Had  you  any  conversation  with  any  of  the  Indians  on 
that  occasion  ?     A.  Well,  the   Indians  would   tell   nie  their 
trouble,  as  well  as  tell  it  to  Captain  Paxton,  and  I  listened  to  20 
what  took  place  between  Captain  Paxton  and  the  Indians. 

"  Q.  Was  that  the  reason  that  they  assigned  for  refusing  to 
go  to  Behring  Sea?     A.  Yes,  sir,  that  is  the  reason. 

"Q.  Will  you  say  the  purport  of  what  you  understood  from 
the  Indians  on  that  occasion,  when  they  refused  to  go  to 
Behring  Sea  ?  A.  There  was  a  whole  lot  of  talk  on  several 
occasions ;  it  did  not  all  happen  at  once. 

"  Q.  Now,  otf  Cape  Scott,  on  the  occasion  in  question,  what 
was  the  conversation  ?  A.  Well,  they  were  scared,  as  some 
of  them  had  been  seized  before.  They  were  scared  to  go  into  30 
Behring  Sea  with  Captain  Paxton :  they  knew  that  ho  had 
nothing  but  his  vessel,  and  they  were  scared  that  if  the  vessel 
was  seized  and  he  lost  her,  they  would  get  no  pay  for  the  sea- 
son's work." 

In  cross-examination  the  following  evidence  was  given : — 

"  Q.  The  chief  reason  why  they  did  not  go  was  because  they 
were  afraid  that  they  would  not  get  their  pay  ?  A.  They  were 
scared  of  seizures. 

"  Q.  Answer  the  question.     The  chief  reason  was  because 
they  were  afraid  they  would  not  get  they  pay,  or  was  it  be- 
cause they  were  physically  afraid  of  seizures?     A.  They  were  .„ 
scared  of  seizure,  and  in  case  that  the  boat  was  8eize<l  they 
thought  that  they  would  not  get  paitl. 

"  Q.  If  they  had  had  a  captain  on  board  that  they  thought 
could  have  paid  them,  then  they  would  have  gone  ?  Q.  That 
I  do  not  know  ;  I  merely  know  what  the  Indians  were  saying 
at  the  time. 

"Q.  Can  you  tell  us  what  the  Indians  did  say  actually?  A. 
Well,  they  wore  talkiii''  about  it  several  times.  They  had  not 
one  conversation  about  it,  but  a  whole  lot. 

"Q.  Contino  yourself  to  the  one  time,  and  tell  us  wliat  they 
said  then?  A.  The  Indians  said,  that  suppose  they  went  to  •''^ 
Behring  Sea,  and  the  vessel  was  seized,  they  knew  that  Cap- 
tain Paxton  had  no  money,  only  the  vessel,  and  they  could  not 
get  their  pay  ;  they  wouM  lose  their  summer's  work  ;  they  wore 
talking  about  their  W(jinen  and  little  ones  starving  at  home, 
and  all  that  kind  of  thing." 

In  consequence  of  this,  the  vessel  returned  about  the  9th  or 
12th  of  May,  and  lost  her  whole  season's  voyage.  She  was  not 
able  to  got  another  crew  of  Indians  at  that  time,  as  all  the  In- 


THB   WiNDBREB. 


188 


diaiiB  who  had  intended  to  go  scaling  had,  in  the  opinion  of 
tlio  master,  heen  already  engaged. 

In  cross-examination  on  that  point,  C'aptain  Paxton  saya : — 

"(i.  You  did  not  go  in  to  see  if  you  could  get  any  crew  after  M  'p'. 
that,  did  you  ?     A.  No,  because  I  knew  what  chances  I  would  ""  '"' 
have  of  getting  a  crew  ;  1  knew  what  vessels  were  in  port." 

It  was  impossihlc  also  for  the  schooner  to  fit  out  with  a  crew 
of  white  men  under  the  circumstances.     Capt.  Paxton  says: — 

"  Q.  What  do  you   mean  when  you  say  you  did  not  have  it  loi"- 
10  money  enough?     A.  In  those  days  white  hunters  used  to  get '""  "*''' 
very  big  advances,  and  a  poor  man  could  not  employ  them. 

"(J.  You  had  not  money  enough  to  get  a  crew  of  white 
hunters,  is  that  what  you  moan  '!    A.  No. 

"  Q  Could  you  have  borrowed  money  on  your  ship  ?  A. 
No,  I  guess  not ;  there  was  a  mortgage  on  her  then. 

'•Q.  And  all  that  you  had  was  in  the  vessel?     A,  Yes. 

"Q.  And  you  knew  then  that  the  other  vessels  had  some 
difficulty  in  picking  up  Indian  crews?  A.  There  was  always 
great  difficulty  in  getting  Indian  crews." 

20      III  consequence  of  the  premises,  the  master  lost  the  whole 
season's  voyage. 

Legal  and  other  personal  expenses  were  incurred  in  the  pre- 
paration and  i^rcsentation  of  the  claim  prior  to  the  appoint- 
ment of  this  Commission. 

Her  .ritannic  Majesty  claims  the  following  items  of  damage 
as  resulting  from  the  premises : 

lii'Knl  iiikI  iitlii'i' i'\|H'iiHfH 9      L'.MMN) 

Tinm  anil  ixiKiisis  cif  fiwiicr LINMKi 

KHtiiiinti'il  ciitdi  I't  KcliiHinir  if  imt  intfifiTiKl  ttiili(ti  limit' 

iiij;  ciiii'M'H  1111(1  one  raiuM'  ii.iril  as   a   sti-rii  lutat.   si-al- 

30  iiiK  tlif  «  hull'  I'l'iisim  of  ISK'.l  ill  lirliriiin  Si  a)  l.liT"  skins 

at  »ll 1S,447  00 


sis.s't;  (N) 


Iiitiri'sf  nil  all  till'  nUivi-  itiins  at  tlir  rati'  nf  7  |«T 
ci-iit  friiiii  rliitrnf  loss  until  paynirnt. 


mm 


I4;tir.  s.  l{. 

I  Pints  1 1.  4"; 


"W.  r.  SAY  WARD"  (COST  CASE.) 
Claim  No.  2<i. 

This  claim  aroHO  as  follows  : 

After  the  illegal  seizure  and  cnn<leinnation  of  the  "  W.  !'• 
Sayward  "  hereinbefore  stated,  lu-r  owners  u|ipeHle<l  against 
the  judgment  of  the  District  Court  of  .\laska  to  the  Supremo 
Court  of  the  United  States,  and  such  a|>|ieai  was  prosecuted 
for  some  time  until  it  became  api>arent  that  the  length  of  time 
necessary  to  bring  the  ap[ieal  on  tor  iiearing  before  the  Sup- 
reme Court  of  the  United  States  would  occasion  much  greater  JQ 
delay  than  the  circumsfanccs  of  the  case  would  permit. 

It  was  manifestly  desirable  that  the  oj)inion  of  that  court 
should  be  obtained  upon  the  main  ipn-stion  involved,  namely, 
whether  the  seizure  was  legal  or  not  at  tiie  earliest  moment 
possible.  ]{otb  the  Oovcnmient  of  the  United  States  and  the 
Government  of  Great  Britain  agreed  as  to  the  advi-iability  of 
obtaining  such  an  opinion.  The  United  States  Secretary  of  State 
in  a  7h>tf  vrrhiile  to  Sir  Sackville  West,  date>l  "ilst  April,  1888,  oq 
says  :  "  It  is  suggested  on  l»ehalf  of  the  United  States  that  as 
the  case  ot  the  seizure  of  British  ves-els  in  liehring  Sea  there- 
in referred  to  are  now  in  court  pending  an  appeal  from  the 
judicial  decision,  It  is  preferable  to  await  the  judgment  of  the 
Appellate  Court  in  the  premises." 

In  order  to  bring  the  matter  before  the  Courts  of  the  United 
Statesaud  ()l)tain  a  speedy  decision  t'rom  them  ujion  the  points 
arising  out  of  the  seizures  of  British  vessels  in  Behring  Sea,  qq 
Tier  Majesty's  Government  following  the  suggestion  containeil 
in  the  note  ri'rlxtlr  above  referred  to,  caused  an  application  to 
be  made  to  the  said  court  for  a  writ  of  prohibition  to  prevent 
the  District  Court  ot  Alaska  from  proceeding  tt)  enforce  the 
judgment  of  coiidcnniation  against  the  "W.  1*.  Sayward." 
This  application  was  made  on  the  12th  .January,  18fU.  Leave 
to  file  the  petition  was  obtained,  briefs  were  tiled,  and  the 
case  argued  orally  before  the  Supreme  Court. 

Judgment  was  given  on  the  20th  February,  1892,  refusing 
to  grant  the  writ  of  prohiliition.  The  ground  of  tlie  decision 
was  that  i)rohibition  wou!d  not  lie  after  judgment,  where  the 
facts  showing  want  of  jurisdiction  did  not  appear  on  the  face 
of  the  record  itself,  and  that  the  evidence  given  in  the  case 
could  not  be  looked  at  to  establish  want  of  jurisdiction.  But 
the  court,  whilst  resting  its  decision  o!>  the  grounds  stated, 
intimated  that  it  might  have  plac.d  it  upon  the  principle  that 
an  application  to  a  court  to  review  the  action  of  the  political  "^^ 
department  of  the  Government,  upon  a  question  pending  be- 
tween it  and  a  foreign  power,  aiul  to  determine  whether  the 
Government  was  right  or  wrong,  made  while  diplomatic  nego- 
tiations were  still  going  on,  shouhl  be  deiiieii. 

The  eflect  of  this  decision  was  to  make  it  ajipannt  that  fur- 
ther recourse  to  the  Courts  of  the  United  States  would  be  futile. 

184 


40 


THE   W.    I*.    SAYWAKO, 


185 


The  Governniont  ot"  Grcut  Britain,  tliercfore,  Imd  cxliaiiHtod 
every  legal  remedy  which  was  open  to  thoin. 

At  tlio  hearing  at  Victoria  a  motion  was  made  to  diHmisn 
this  claim,  upon  the  ground  that  no  claim  lor  costs  incurred  l»y 
Her  Majesty's  Government,  or  by  the  (Jovcrnmont  of  Canada, 
should  be  considered  before  this  Tribunal,  and  further,  assum- 
ing that  such  a  case  could  be  entertained,  this  claim  was  not 
within  the  meaning  of  the  wonls  used  in  the  framing  of  the 
convefition. 

10      The  moticn  was  nllowcil  to  stand  over  for  discussion  at  the 
main  argument. 

It  is  submitted  that  there  is  no  foundation  for  this  motion. 
The  claim  was  set  out  in  the  schedule  to  the  convention.  The 
words  there  used  are:  "Costs  in  the  *  Say  ward'  case."  The 
simple  (pjestit.'u  is  :  "  What  do  those  words  mean  V " 

It  need  hardly  be  contended  that  (iroat  Hritain  and  the 
United  States  were  at  liberty  to  include  in  this  arbitration  any 
claim  that  they  saw  fit  to  agree  upon.  It  is  also  clear  from 
the  language  of  the  convention  that  using  that  freedom  to 
20  contract,  they  liave  agreed  to  refer  to  this  commission  a  claim 
for  some  costs  in  the  "  Say  ward  "  case.    What  costs  are  meant? 

In  the  British  counter  case  before  the  Paris  tribunal,  United 
States  version,  page  2t)9,  the  following  chapter  a|)pearB  under 
tiie  head  of  "  Damages"  : — 

"With  reference  to  tlic  claim  for  damages  mentioned  at 
page  12  of  the  liritish  case  and  the  particulars  set  out  in  the 
schedule  thereto.  Groat  ISritain  will  claim  in  addition  to  the 
amount  there  stated,  the  sum  of  l5(!2,847.12  the  amount  of 
expenses  incurred  by  the  Government  of  C'anadain  connection 
•  0  with  the  proceedings  before  '!ie  Supreme  Court  of  the  United 
States  with  a  view  of  establishing  the  illegality  of  the  seizure 
of  the  *  W.  P.  Sayward.'  " 

The  facts  are,  therefore,  that  this  particular  claim  was  formu- 
lated and  placed  before  the  Paris  tribunal.  It  was  not  then 
objected  to  as  a  fair  matter  for  consideration,  and  wlien  the  diplo- 
matists of  the  two  Governments  engaged  upon  the  settlement 
of  the  terms  of  the  present  convention  there  could  have  been 
no  other  "  Sayward"  costs  before  their  minds,  as  no  other  claim 
for  costs  had  ever  i)een  made.     It  is  submitted,  therefore,  that 

40  the  CommissioTiers  cannot  hold  that  this  claim  is  not  within  the 
terms  of  the  convention  without  disregarding  its  express 
language. 

The  only  question  that  really  should  be  considered  is  : 
"  Should  the  tribunal  conclude  that  these  costs  are  properly 
recoverable  ?  "  It  is  submitted  that  upon  this  point  no  doubt 
can  be  entertained.  The  very  taut  that  they  are  sulimitte<l  to 
this  tribunal  is  an  admission  that  they  are  proper  subjects  tor 
compensation,  and  the  only  question  is  :  "  Is  the  amount  cor- 
rect, or  is  it  not?"'     Upon  this  point  no  (piestion  is  raised. 

^^  The  argument  was  one  of  very  great  imjiortance  and  it  was 
necessary  that  counsel  of  liigh  standing  sliould   be  emidoyetl. 
The  expense  of  employing  such  counsel  was  necessarily  large, 
and  the  tees  charged  have  actually  been  paid. 
11  B— 24 


r-|,:-v 


186 


THB  W.   P.   SAYWARD. 


It  must  also  bo  here  remarked  that  ttiese  expenses  were 
incurred  as  the  direct  outcome  of  the  wrongful  acts  of  the 
United  States  Government.  If  it  had  not  been  for  their  action 
in  seizing  British  vessels  no  such  litigation  could  possibly  have 
arisen. 

It  was  highly  proper  that  every  eft'ort  should  be  made  to 
take  advantage  of  any  remedy  provided  by  the  courts  of  the 
United  States,  before  having  resort  to  international  arbitration, 
and  it  is  submitted  that  the  expenses  necessarily  and  properly 
incurred  in  ^ucb  an  attempt  should  bo  reimbursed. 


10 


f'lttiiii  Nil. 

1. 

"      N.>. 

o 

:«. 

"      Nc. 

4. 

"      N... 

*1, 

Nil.  «. 
Nil.  7. 
Nil.  M. 
No.  !l. 
No.  10. 
Nil.  11. 
No.  12. 


No.  i;i. 
No.  II. 
No.  15. 
No.  l«. 
X».  17. 
No.  IH. 
No.  l!t. 
No.  1!«». 
No.  25. 


No.  'Jl. 

No,  i.".'. 
No.  •_>:(. 
No.  L'1. 

No.  -ii. 


INM«. 

Till'  "t'iinilciiu" KW.tlH'.l.l'S 

"    "TlHiniton" 42,ltW.<M 

"     "Oimiinl" 45,570.1(1 

••     '•  Kiivinirit.'" (i,l.'«t2.<Mt 

"     ••  r.liiL-k  hiniiioMir' 10,<1H7.<H» 

•142,711.3!) 
I  MM*. 

••    ••  \V.   V.  Saywiird  " 47.!m«  '.Hi 

■    •'    ".Viiiiii  lltik" M.-'DKllW 

••    ".Mfr..!!  .Adiuiii." 2o,74«.iK) 

"    "  l)ol|iliin" tW,sil7  71 

"    'M;riic«'" n4,4'.»*.25 

"    ".Villi" til,<HW  07 

rriuiii|ili" .Vt25..-.o 

«322.7ti4.57 

IMHtt. 

"  ••.liiiiiiit.-*" :»2,4H1.0O 

••  "riitlifiiiil.T" H4,«22.«» 

"  "Ulack  IMiiinonil" 41,!Hll.tHI 

'•  "I,ily" :M,574.00 

-  •'  "Mimiif" 40,407.00 

-  "  '•Triumiili" lO.itBO.lNI 

-  "  "Arii-l" 20,(Hil.oo 

•'  "Kiitr" 22,;W4.00 

"  '•  Wandenr " IH,H!)7  00 

fr2Hti,277 .00 

1N90. 

"    ••I'lilliliiul.T" ;<,7IKI  00 

••    "llriiii.ttii" '.'1,404  10 

■•    ••OwiifiV  lliiltiu" ll,:t(L5.tl<( 

••    •' Wiiiiiififil" ti.lUW.Oft 

*.'«t,4(K!.15 

"    ('lmt^  ill  ••Saywiiiil  "  Ciw .*ti2,S»7. 12 

Total i!W>7,702.23 


187 


rp^p 


\m 


m 


IlECAPITULATION. 


liitiT)  nt  on  alaiM'  al  llii'  latr  of  7  Iht  I'l'lit   from  ilatis  ihi'iitiiiliixl  in 
tlir  luirtii'iilam  until  |iayiiii'iit. 


;l8i.: 


10. 


^1"™' 


CONCLUSION. 

It  lias  hc'cii  coiiBiilored  tliat  the  rulon  proscribod  by  this 
Hi.uli  ('oininissioii  would  bo  aiibstiintiiilly  coiuplicd  with,  if'tlio 
toii'i^roiii^  aij^unu'iit  were  ooiitiiu'il  to  a  d'HciiBsioh  of  tbo  inuiii 
filets  elii  ited  liy  the  i-vidoiioo.  Mimy  matters  of  <letail  toiii- 
lirisod  ill  the  vohiniiiions  testimony  taken  at  Victoria  eouhl 
not  it,'  oonvonit'Mtly  diHciissed  at  tliis  stairo  of  tlio  procectliiiffs 
Indeed,  it  is  only  ri^lit  to  state  tliat  from  circumstances  over 
wliieli  those  in  eliarije  of  the  ^5l•itish  case  had  no  control,  the 
printinu'  of  the  oxliibils  was  not  coiiiiaciiecd  until  some  time  jq 
after  that  of  the  other  portion  of  the  testimony.  Some  of 
these  important  documents  have  been  received  from  time  to 
time,  but  the  eom|>iete  print  could  not  he  made  available  for 
use  in  the  preparation  of  the  ariiument  tor  (Jreat  Britain, 
without  postponiiin'  its  delivery  beyond  the  period  prescribed 
by  the  rules  of  the  Commission. 

It  is  (juite  possible,  therefore,  that  several  items  of  claim 
may  have  been  overlooked,  and  that  some  features  of  the  case 
may  not  have  been  especially  dwelt  upon.  Any  omission  of 
that  character,  it  is  assumed,  will  not  embarrass  the  counsel  20 
for  the  Uniteil  States,  or  this  tribunal,  and  the  counsel  for 
(ireat  Britain  desire  to  ••escrve  the  right  to  refer,  on  a  suitable 
occasion  h»'r"aftcr,  to  any  facts  not  particularized  in  this  argu- 
ment, which  may  be  dienied  by  them  to  be  material. 

KREDERICIC  PETERS, 
\'\  L.  JjfilQUE, 
ERNEST  V.  BO  DWELL, 
CllAliLES  IIIBBERT  TUITER. 


188 


ANNEX  1. 


THE  MODUS  VIVKNIiI  OF  1801. 


"  Ajfroi'inciit  hetwecii  th(!  (Jovcrnniciit  of  Her  liritanni)' 
Mnjt'Kty  Mini  tlip  (5()vornmoiit  of'tho  I'liitod  Ktiiteaf'or  n  nnu/iis 
vivtiiili  ill  reliitioii  to  tin-  fur-wnl  fislu-rieH  in  licliring  Sou. 

"  For  tho  purpose  of  avoiding  irritating  (lifioronocs,  ami 
witli  11  view  to  promote  tho  friomllv  sottleinont  of  (piontioim 
ponding  lietwcen  tlio  two  govorninontB  toucliing  tliuir  roBpe*:- 
tivc  rights  in  I'eliring  Sea,  and  for  tlie  prosorviition  of  the 
10  wal  Bpofiert,  the  following  agreement  is  nnide  v.ithont  pre- 
judice to  the  rights  or  ciuinis  of  either  pftity  : — 

•'(1)  Her  Majesty's  (Jovernment  will  prohihit,  until  May 
next,  foal  killing  in  that  part  of  Hi'hring  Sea  lying  eastward 
of  the  line  of  demarcation  deseribod  in  article  No.  1  of  tho 
treaty  of  1867,  between  th'j  United  States  and  Uussiu,  and 
will  promptly  use  its  host  efforts  to  ensure  the  observance  of 
this  prohibition  by  liritish  subjects  and  vessels. 

"(2)  The  United  States  (lovernnient  will  prohibit  seal  kill- 
ing for  the  same  period  in  the  same  part  of  liehring  Sea,  and 
20  on  the  shoros  and  islands  thereof,  the  property  of  the  United 
States  (in  excess  of  7,500  to  be  taken  on  the  islands  fur  the 
subsistence  and  care  of  the  natives),  and  will  promptly  use  its 
best  efforts  to  ensure  the  observance  of  this  prohibition  by 
United  States  citizens  and  vessels. 

"(8)  Every  vessel  or  person  offending  against  this  prohibi- 
tion in  tho  said  waters  of  iiehring  Sea,  outside  of  the  ordinary 
territorial  limits  of  the  United  States,  nuiy  bo  seizeil  and 
detained  by  the  naval  or  other  duly  commissioned  officers  of 
either  of  the  high  contrneting  parties,  but  they  sliall  be  handed 
30  over,  as  soon  as  practicable,  to  the  authorities  of  the  nation  to 
which  they  respectively  belong,  who  shall  alone  have  jurisdic- 
tion to  try  the  offence  and  impose  the  penalties  for  tfie  same 
The  witnesses  and  proofs  necessary  to  establish  the  offence 
shall  also  be  se!it  with  them. 

"(4)  In  order  to  facilitate  such  pr()i)er  inquiries  as  Her 
Majesty's  Government  may  desire  to  make,  with  a  view  to 
the  presentation  of  the  case  of  tliat  Ooverninent  before  arbi- 
trators, and  in  expectation  that  an  agreement  for  arbitration 
may  be  arrived  at,  it  is  agreed  that  suitable  persons,  designateil 
40  by  Great  IJritain,  will  be  permitted,  at  nuy  time,  upon  applica- 
tion, to  visit  or  remain  upon  the  seal  islands  during  the 
present  sealing  season  for  that  pur[io8e. 

"Signed  and  sealed  in  duplicate  at  Washington,  this 
fifteenth  day  of  June,  1891,  on  behalf  of  their  respective 
Governments,  by  Sir  Julian  I'auncefote,  CJ.C.M.G.,  lv.(!.B., 
II.B.M.,  Envoy  Extraordinary  and  Minister  I'lenipotentiary, 
and  William  E.  Wharton,  Acting  Secretary  of  State  of  the 
United  States. 


50 


"  J  ULI AN  PAUNCEFOTE.     (Seal.)  " 
"WILLIAM  F.  WHARTON.  [Seal.]" 


t\ 


m 


189 


ANNKX  2. 


TREATY     IIKTWKBN    OKKAT    IIHITAIN     AND    TlIK    I'NITKn    STATES    OV 

AMBIllOA — AKIIITRATION    RESPECTINil    TUB    SEAI,    PISIIBHIBS   IN 

BEURINO    SEA,   SIONBD    AT    WASUINdTON,    PEitHUARY 

29,  1892. 
[Rntifii'iiliinis  excli(ini/eil  nt   Lomlon,  May  7,  1892.] 

Ilcr  MiijcHty,  tlic  Qiiooii  of  tlio  United  Kiii^tloiii  of  Grout 
nritniii  ami  Ireland,  and  tlie  United  States  of  Anierien,  being 
desirous  to  provide  for  an  amicable  sottlemei't  of  tlio  qnes 
tions  wbieb  iuive  arisen  l)et\veen  tlieir  respeetivc  governments  jo 
eoneennng  the  jurisdictional  risrbts  of  tlie  United  States  in 
tlie  water  of  Melirinsj;  Sea,  and  eonecrning  also  tbe  preserva- 
tion of  tbo  fur  seal  in,  or  Inibituuliy  resorting  to  the  pai<l  sea, 
and  the  rigbtsof  tbo  citizens  and  subjoets  of  either  country  as  re- 
gards tbo  taking  of  fur  seal  inorbaliitnally  resorting  to  tbe  said 
waters,  have  resolved  to  submit  to  arbitration,  the  questions 
involved,  and  to  tbe  end  of  concluding  a  convention  for  that 
purpose  have  appointed  as  their  respective  i)K'nipotentiarles. 

Her  Majesty  tbe  Queen  of  the  United  Kingdom  of  Great 
Dritain  and  Ireland,  Sir  Julian  I'auncefote,  G.C.M.G  ,  KC.B.,  20 
Her  Majesty's  Knvoy  Extraordinary  and  Minister  Plenipoten- 
tiary to  the  United  States ;  and  the  President  of  the  United 
States  of  America,  James  G.  lilainc,  Secretary  of  Siate  of  the 
United  States; 

Who,  after  having  communicated  to  each  other  tlieir  re- 
spective full  powers,  wliich  were  found  to  be  in  due  and  proper 
torra,  have  agreed  to  and  concluded  the  following  articles : — 

Artirle  J. 

The  questions  which  have  arisen  between  the  (lovemment 
of  Her  Britatniic  Majesty  and  the  Government  of  the  United  go 
States  concerning  tlic  jurisdictional  rigbtsof  the  United  States 
in  the  waters  of  IJebring  Sea,  and  concerning  also  tbe  pre- 
servation of  tlie  fur-seal  in  or  habitually  resorting  to  the  said 
sea,  and  tbe  rights  of  the  citizens  and  sulijects  of  either  coun- 
try as  regards  the  taking  of  fur-seal  in  or  habitually  resorting 
to  the  said  waters,  dball  be  submitted  to  a  tribunal  of  arbitra- 
tion, to  be  composed  of  seven  arbitrators,  who  shall  be  ap- 
pointed in  the  following  manner,  that  is  to  say  :  two  shall  be 
mmied  by  Her  IJritannic  Majesty;  two  shall  be  named  by  the 
President  of  tbe  United  States;  His  Kxcellency  the  President  49 
of  tbe  French  Kepnblic  shall  be  jointly  rc(|uested  by  tbe  high 
contracting  parties  to  name  one;  His  .Majesty  the  King  of 
Italy  shall  be  so  re(iuested  to  name  one  ;  and  His  .\lajesiy  the 
King  of  Sweden  ami  Norway  shall  bo  .so  requested  to  name 
one.  Tbe  seven  arbitrators  to  be  so  named  shall  be  jurists  of 
distinguishetl  reputatitm  in  their  respective  countries;  and  the 
selecting  powers  shall  be  requested  to  choose,  if  possible,  jurists 
who  are  acquainted  with  the  English  language. 

In  case  of  the  death,  absence,  or  incapacity  to  serve  of  any 
or  either  of  the  said  arbitrators,  or  in  the  event  of  any  or  either  59 
of  the  said  arbitrators  omitting  or  declining  or  ceasing  to  act  as 
such,  Her  Hritannic  Majesty,  or  the  President  of  the  United 
States,  or  His  Excellency  the  I'reeident  of  the  French  Republic, 

190 


T"*""^^^"'! 


ANNRX   2. 


101 


or  IIU  MnjoBty  the  King  of  Italy,  or  His  MnjcHty  the  K'ma  of 
S\vo«lcii  and  Norway,  aa  tlic  case  may  hi",  hIuiII  iianio,  or  kTiuII 
lio  roquoHtcd  to  iiainu  fortliwitli,  another  jierrton  to  act  ha  arbi- 
trator in  the  iihieo  ami  stead  of  the  arbitrator  originally  named 
i»y  Huch  head  of  a  state. 

And  in  the  event  of  the  refusal  or  omisriion  for  two  months 
after  reeoiut  of  the  joint  ro(|uest  from  the  hiuh  eontractinii- 
parties  of  His  Excellency  the  President  of  the  French  Hejiuh- 
lic,  or  His  Majesty  the  King  of  Italy,  or  Mis  Majesty  the  Kiiij.^ 
10  of  Sweden  and  Norway,  to  name  an  arbitrator,  either  to  till 
the  original  appointment  or  to  till  a  vacancy  ttsi'bovo  provi<lcd, 
then  in  such  ease  the  appointment  shall  l>e  made  or  the  va- 
cancy shall  bo  tilled  in  such  manner  as  the  higli  contracting 
parties  shall  agree. 

Arlirlr  TI. 

The  arbitiiitors  shall  meet  at  Taris  within  twenty  days  after 
the  delivery  of  the  counter-cases  mentioned  in  Article  l\'.,  and 
shall  proceed  impartially  and  carefully  to  examine  and  decide 
the  questions  that  liave  been  or  shall  be  laid  before  them  as 
herein  provided  on  the  part  of  the  (Jovernments  of  Her  Uri- 
20  tannic  Majesty  and  the  United  States  respc(;tively.  All  (pies- 
tiona  considered  by  the  tribunal,  including  the  iinal  decision, 
shall  be  determined  by  a  majority  of  all  tne  arbitrators. 

Each  of  the  high  contracting  parties  shall  also  name  one 
person  to  attend  the  tribunal  as  its  agent  to  represent  it  gen- 
erally in  all  matters  connected  with  the  arbitration. 


■  "•J  '. 


Article  III. 

The  printed  case  of  each  of  the  two  parties,  accompanied  by 
the  documents,  the  otHcial  correspondence,  and  other  evidence 
on  which  each  relics,  shall  be  delivered  in  duplicate  to  each  of 
30  the  arbitrators  and  to  the  agent  of  the  other  party  as  soon  as 
may  be  after  the  appointment  of  the  memberi  of  the  Tribunal, 
but  within  a  period  not  exceeding  four  months  from  the  date 
of  the  exchange  of  the  ratitications  of  this  treaty. 

Article  IV. 

Within  three  months  after  the  delivery  on  both  sides  of  the 
printed  case,  cither  party  may.  in  like  manner,  deliver  in 
duplicate  to  each  of  the  said  arbitrators,  and  to  tlie  agent  of 
the  other  party,  a  counter-case,  and  additional  documents,  cor- 
respondence, and  evidence,  in  reply  to  the  case,  documents, 

40  correspondence,  and  evidence  so  presented  by  the  other  party. 
If,  however,  in  consequence  of  the  distance  of  the  place  from 
which  the  evidence  to  be  presented  is  to  be  procured,  either 
party  shall,  within  thirty  days  after  the  receipt  by  its  agent  of 
the  case  of  the  other  party,  give  notice  to  the  other  party  that 
it  recpiirea  additional  time  for  the  delivery  of  such  counter- 
case,  documents,  correspondence,  ami  evidence,  such  additional 
time  so  indicated,  but  not  exceeding  sixty  days  beyond  the 
three  months  in  this  article  provided,  shall  be  allowed. 

If  in  the  case  submitted  to  the  arbitrators  either  party  shall 

50  have  speciticd  or  alluded  to  any  report  or  document  in  its  own 
exclusive  possession,  without  annexing  a  copy,  such  party  shall 
be  bound,  if  the  other  party  thinks  proper  to  apply  for  it,  to 
furnish  that  party  with  a  copy  thereof ;  and  either  party  may 
call  upon  the  other,  through  the  arbitrators,  to  produce  the 
originals  or  certified  copies  of  any  papers  adduced  as  evidence, 
giving  in  each  instance  notice  thereof  within  thirty  days  after 


WTT^rr^m^'^ 


199 


ANNRX 


ilt'livorv  of  tlio  cftBo ;  iiiid  tho  (trijfiiml  or  oopy  ho  rci|ii08to< 
hIiuII  Ik>  (lelivi-rt'tl  um  hooii  u»  iiiiiy  lie,  ami  witiiiii  u  |ioi'io<l  no 
vxcucilin^  forty  tIayH  at'tor  rccoipt  of  notice 


not 


Arlfclr  V. 

It  8lia]l  ho  tlio  duty  of  the  a^cnt  of  cncli  party,  williiii  onu 
month  uftor  tho  expiration  of  tJiu  tiniu  liniitt'd  for  thu  (lulivcry 
of  thi!  tonntc'r-cuHo  on  Itotli  Hidon,  to  ilulivcr  in  dnpliiato  to  ouch 
of  tlio  Haid  arhitratorn  and  to  tho  agent  of  tiio  other  ]iarty  u 
printed  argument  Hhowing  tlie  |H>int8  and  referring  to  tho  cvi- 
donee  upon  wliieh  JiIh  government  relies,  and  either  party  may  10 
almi  support  tho  name  hoforo  tlu-  urhitratorn  l>y  oral  argument 
of  counHol ;  and  the  arliitrators  may,  if  tlioy  desire  furtlier 
ehicidation  with  regard  to  any  point,  ro(|Uiro  a  written  or 
printed  Btulement  or  argiiinenl.  or  oral  iirgiiment  hy  eounsel, 
upon  it;  hut  in  hucIi  caxo  the  oilier  party  Hhall  ho  entitled  to 
reply  either  orally  or  in  writing,  ait  the  caHO  may  he. 

Article  VI. 

In  deciding  the  matters  suhmifted  to  the  arhitrators,  it  is 
agreed  that  the  following  five  points  shall  he  suhmitted  to  them, 
in  order  that  their  award  shall  cmhraec  a  distinct  decision  upon  .>q 
each  of  said  live  points,  to  wit :  — 

1.  What  exclusive  jurisdiction  in  the  sea  now  known  as  the 
Behring  Sea,  and  what  exclusivo  rights  in  the  seal  fisheries 
therein,  did  Russia  assert  and  exercise  prior  and  up  to  the  time 
of  the  cession  of  Alaska  to  tlic  United  States? 

2.  How  far  nero  these  claims  of  jurisdiction  ns  to  the  seal 
fisheries  recognized  and  conceded  hy  Great  Britain  ? 

3.  Was  the  hody  of  water  now  known  as  the  Behring  Sea 
includ   1  in  the  phrase  "  Pacific  Ocean,"  as  used  in  the  treaty 

of  18-!    hetwcen  Groat  Britain  and  Russia;  and  what  rights,  30 
if  any,  in  tho  Ik'hringSea,  wore  held  and  exclusively  exercised 
by  Russia  after  said  treaty? 

•I.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction  and  as 
to  tho  seal  fisheries  in  Behring  Hca  oast  of  the  water  boundary, 
in  the  treaty  between  the  United  States  and  Russia  of  tho 
30th  March,  1807,  pass  unimpaired  to  the  United  States  under 
that  treaty  ? 

5.  Has  the  United  States  any  right,  and,  if  so,  what  right, 
of  protection  or  projierty  in  the  fur-seals  frequenting  the  islands 
of  the  United  States  in  Behring  Sea  when  such  seals  arclound  40 
outside  the  ordinary  8-mile  limit? 


Article  VII. 

If  the  dotermiutition  of  tho  foregoing  (piestions  as  to  tlio 
exclusive  jurisdiction  of  tho  United  States  shall  leave  the  sub- 
ject in  such  position  that  the  concurrence  of  (ireat  Hritain  is 
necessary  to  the  establishment  of  regulations  for  the  proper 
protection  and  preservation  of  the  tur-seal  in,  or  habitually 
resorting  to,  the  Behring  Sea,  the  arbitrators  shall  then  deter- 
mine what  concurrent  regulations  outside  tho  jurisdictional 
limits  of  tho  respective  governments  are  necessary,  and  over  50 
what  waters  such  regulations  should  extend,  and  to  aid  them 
in  that  determination,  the  report  of  a  joint  commission,  to  bo 
appointed  by  tho  respective  governKients,  shall  be  laid  before 
them,  with  such  other  evidence  as  either  government  may 
submit. 


^m 


ANNKX 


198 


111  i    'If 


Till'  lii>(li  cDiitriictiiij;  |>iirlit'M  t'lirflu'rrnnn'ujjrt'o  torn-oiK-rnto 
ill  «('i-iiriiiir  'lie  aillKHimi  nl' cither  powors  to  mii-li  ruiriilutioiis. 

Arlirle  VIII. 

Till'  liij^li  iiiiitnic'tiii^  [mrtiiH  haviiii;  romiil  thutniW'IvuH  iiii- 
ultli'  to  iiijri'f  iiiioii  11  rctiTi'ii.M'  wliicli  sliull  iiicliuli'  tlio  i|iH!s- 
tiiiii  dt'  the  llaiiility  ol'  i-ikIi  I'm-  tlii>  iiijiiricri  allcgt'il  to  liavo 
Iti'i'ii  HUrttiiiiicd  liy  tlic  ollii'i',  (ir  by  its  citi/.i'ii!*,  in  I'tiiiiioctioii 
with  tlu'  claiiin  prirtfiitcd  iinil  urirod  \>\  it  ;  and,  being  Holiiit- 
oiis  liiat  tills  »iil)iiidiiiati,'  (|iifHficin  «b<iiilii  not  iiitiTrii|it  or 
lniiu:('r  ilulay  tlic  xninniHsiDii  and  di'tciiniimtidn  of  tlio  nmiti 
(|iic>tiiiiM.  do  a<;i'U('  tliat  fitln'i'  may  rtiilmiit  tn  tlic  arltitrators 
any  (|iu'sti(>n  ot  tiifl  iiivnlvcd  in  said  clainis  and  ask  for  a  tiiid- 
iniT  tlicifiin.  till'  (|ii('sli(in  nf  tin.'  liability  uf  t-ithur  tcovornnicnt 
ii|iiin  llic  tiicts  liiiiiid  to  III'  tlic  siibjo't.  of  fiirtiior  nogotlatioii. 


|8   !'J 


ArliAr  IX. 

Till!  liipb  ('ontracliiii;  jiarlii's  liavini^  agrood  to  appoint  two 
c'oinniissioiii'i's  on  tlio  pint  of  I'luli  govcriiineiit  to  make  tlio 
joint  invi'sli),Mtioii  and  report  i!onl<iiiiilati'd  in  tlio  preceding 
artii'lo  \'II.,  and  to  iiuliido  flic  term  of  the  said  agrcoinent 
^0  i"  the  present  ctinvcntion,  to  the  >  nd  (hat  the  joint  and  sev- 
eral reports  and  rccdniineiidat"'  's  of  •  lid  coinini::  .ioners  may 
bo  in  due  form  submitted  to  '  arbitrators,  should  the  con- 
tiiigcncy  therefor  arise,  the  said  agreement  is  accordingly 
herein  included  as  follows  : — 

Knch  government  shall  appoiiu  iwo  commissioners  to  inves- 
tigate, conjointly  w'tJi  the  coinmissioncrs  of  flic  other  govern- 
ment, all  the  facts  having  relation  to  ral-life  in  Hehring  Sea, 
aJid  tho  measures  necessary  for  its  proper  protection  anil  pre- 
servation. 
no  'i'he  four  commissionors  shall,  so  far  as  they  may  bo  able  to 
agree,  make  a  joint  rojiort  to  each  of  the  two  governments  and 
they  shall  also  report,  cither  jointly  or  severally,  to  each  govern- 
ment on  any  points  upon  which  they  may  be  unable  to  agree. 
These  reports  sliull  not  be  miulo  [lublic  until  they  shall  be 
submitted  to  the  arbitrators,  or  it  shall  appear  that  the  con- 
tingeiuy  of  their  being  used  by  the  arbitrators  cannot  arise. 

Article  X, 

Kach  government  shall  pay  the  cxponscs  of  its  members  of 
the  joint   commission  in  the  investigation  referred  to  in  the 
'"  preceding  article. 

Articlf  XL 

The  decision  of  the  tribunal  shall  if  possible,  be  made  within 
;i  months  from  tho  close  of  tho  argument  on  both  sides. 

It  shall  be  made  in  writing  and  dated,  and  shall  be  signed 
by  the  arbitriiti>rs  who  may  assent  to  it. 

The  decision  shall  be  in  dupliciite,  one  copy  whereof  shall 
be  delivered  to  the  .•gent  t>f  (iiciit  Uritain  for  his  govcrmnciit, 
anil  tho  other  copy  shall  be  delivered  to  the  agent  of  the 
United  States  for  his  goveriuncnt. 


'11 


50 


Article  XII. 

Kach  governnient  shall  pay  its  own  agent  and  provide  for 
the   proper  rcinuncration   of  the  counsel  employed  by  it  and 


B  s- 


.o.'i 


194 


ANNBX 


of  the  arhitrators  appointed  l»y  it,  and  tor  tlie  expense  of  pre- 
paring and  Hiibniitting  \U  vnsli  to  tlu"  trilMiiiul.  All  other  ex- 
penses eonneited  w ith  the  arbitration  shall  lie  defrayed  hy  the 
two  goveriunents  in  eipial  moieties. 

Article  XIII. 

The  arbitrators  shall  keep  an  aeiiirate  reeord  of  their  pro- 
ceedings, and  may  ap|ioint  and  employ  the  necessary  ollicers 
to  assist  tliem. 


Artirle  XIV. 


The  liigh  eonfraeting  parties  engage  to  consider  the  resnlt  lo 
of  the  proceedings  of  the  tribunal  of  arbitration  as  a  full,   per- 
fect, and  tinal  settlement  of  all  (Questions  referred  to  the  arbi- 
trators. 


A, tide  XV. 

The  present  treaty  shall  be  duly  ratilied  by  Her  Hritannic 
Majesty  and  by  the  IVosident  of  the  United  States  of  America, 
by  and  with  tlie  advice  and  consent  of  the  senate  thereof;  and 
the  ratitications  shall  be  either  at  Washington  or  at  Lon<lon 
within  six  months  from  the  date  hereof,  or  earlier  if  possible. 

In  faith  whereof,  we  the  respective  plc'iipotentiaries,  have  oq 
signed  this  treaty,  and  liave  liereunto  affixed  our  seals. 

Done  in  duplicate,  at  Washington,  the  2!»th  day  of  Februarv 

1892. 

(LS.)        JULIAN  PAUNCEFOTE. 
(LS.)        JAMES  G.    BLAINE. 


i:;  W 


:  )  '  'I 


ANNKX  III. 


THE   MODUS   VIVENDI   OF   1802. 

Coiivimlion  hetiirm  Grrnl  Britnin  nnil  the  United  States  of  Am- 
eriiv  for  the  renewal  of  the  cxisliiii]  modus  rivendi  in  Behring 
Sea. 

Whcreii!*  by  a  convention  coiieliuled  l)etwoen  Her  Majesty 
the  Queen  of  the  United  Kingdom  of  (Sreat  Hritainand  Ireland 
and  the  United  States  of  Amoriea,  on  tiie  twenty-niuth 
day  of  Fehruary,  one  thousand  eight  Imndred  and  ninety-two, 
10  the  high  contracting  parties  have  agreed  to  submit  to  arbitra- 
tion, as  therein  stated,  the  (juestions  which  have  arisen  befora 
them  concerning  the  jurisdictional  riglits  ot  the  United  States 
in  tiie  waters  of  Hehring  Sea,  and  concerning  also  the  preser- 
vation of  the  fur-seal  in  or  habitually  resorting  to  the  said  sea, 
and  the  rights  of  the  subjects  and  citizens  of  either  country  as 
regards  the  taking  of  fur-seals  in  or  habitually  resorting  to,  the 
said  waters  ;  an<l  whereas  the  high  contracting  parties,  having 
differed  as  to  what  restrictive  regulations  for  seal-hunting  are 
necessary,  during  the  pendency  of  the  arbitration,  have  agreed 
20  to  adjust  such  ditference  in  manner  hereinafter  mentioned,  and 
without  prejudice  to  the  rights  of  either  party. 

The  said  high  contracting  parties  have  appointed  as  their 
plenipotentiaries  to  conclude  a  convention  for  this  purpose,  that 
is  to  say  : 

Her  Majesty  the  Queen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  Sir  Julian  t'auncefote.  Knight  Grand 
Cross  of  the  Most  Distinguished  Order  of  Saint  Michael  and 
Saint  George,  Knight  Conmumder  of  the  Most  Honourable 
Order  of  the  Batli.  ami  Envoy  Extraordinary  and  Minister 
no  I'ieiiipotentiary  of  llcr  Hritanuic  Majesty  to  the  United  States  ; 

And  the  President  of  the  United  States  of  America,  •lames 
G.  filainc,  Secretary  of  State  of  the  United  States ; 

Who,  after  having  communicated  to  eacli  other  their  respec- 
tive full  powers,  found  iu  due  and  good  form,  have  agreed  up- 
on and  concluded  the  following  articles  : — 

Article  I. 

Her  Majesty's  government  will  Mrohibit  during  the  pendency 
of  the  arbitration  seal-killing  in  that  part  of  Behring  Sea  lying 
eastward  ot  the  line  of  demarcation  described  in  article  1,  of 
40  the  treaty  of  1867,  between  the  United  States  and  !\ussia,  and 
will  promptly  use  its  best  efforts  to  ensure  the  observance  of 
this  prohibition  by  Jh-itish  subjects  and  vessels. 

Article  2. 


The  United  S^^ates  government  will  prohibit  seal-killing  for 
the  same  period  in  the  same  part  of  Behring  Sea,  and 
on  the  slioroB  and  islands  thereof,  the  property  of  I  he  United 
State;;,  (in  excess  of  seven  thousand  live  luuulred  to  be  taken 
on  the  islands  for  the  subsistence  and  care  of  the  mitives),  and 
will  promptly  use  its  best  efforts  to  ensure  the  observance  of 
50  this  prohibition  by  United  States  citizens  and  vessels. 

195 


w^mmmmm 


196 


ANNEX    3. 


Artirlc  :^. 

Kverj'  vessel  or  person  oiremliiii!,-  iiffuiiint  tliis  prohibition  in 
tlie  fiiid  waters  of  Ueliring  Sea,  oiitsiile  of  tlie  onlimiry  terri- 
torial limits  of  the  Tniteil  States,  may  lie  seized  ami  detaineil 
hy  the  naval  or  other  duly  eonimissioned  oHicers  of  either  of 
the  hifjh  eontraetinir  parties,  init  they  .-hall  he  handed  over  as 
soon  as  praetieahle  to  the  anthorities  oi  tiu- nation  to  which 
they  respeetively  belong,  who  shall  alone  have  jiirisdietion  to 
try  tlie  ott'ence  and  impose  the  penalties  for  the  same  The 
witnesses  and  jtroofs  necessary  to  establish  the  oflence  shall  also  10 
be  sent  with  them. 

Artirle  4. 

In  order  to  facilitate  such  jiroper  inipiiries  as  Her  Majesty's 
government  may  desire  to  make,  with  a  view  to  the  proseiitii- 
tion  of  the  case  and  arguments  of  the  government  l)efore  the 
arbitrators,  it  is  agreed  tliat  suitable  persons  designated  by 
Great  Hritain  will  be  permitted  at  any  time,  upon  aiiplication, 
to  visit  or  remain  upon  the  seal  islands  during  the  sealing 
season  for  that  purpose. 

A  rti'le  .'>.  .)() 

If  the  result  of  the  arbitration  be  to  aifirm  the  right  of 
JJritish  sealers  to  take  seals  in  tiie  liehring  Sea  within  tiio 
bounds  claimed  by  the  United  States  under  its  pt.rchase  from 
Russia,  then  comjiensation  shall  be  made  by  the  United  States 
to  (ireat  i?ritain  (for  tlie  use  of  her  subjects)  tor  abstaining 
from  exercise  of  that  right  during  the  peiidetiey  of  the  arbi- 
tration, upon  the  basis  of  such  regulated  and  liinite<l  catch  or 
catches  as  in  the  opinion  of  tlie  arbitrators  might  have  been 
taken  without  an  undue  diminution  ol  the  seal-herds  ;  and  on 
the  other  hand,  if  the  result  of  the  arbitration  shall  be  to  deny  30 
the  right  of  British  sealers  to  take  seals  within  the  said  waters, 
then  compensation  shall  be  made  by  Great  Britain  to  the 
United  States  (for  itsell,  its  citizens  and  lessees)  for  this 
agreement  to  limit  the  island  catch  to  seven  thousand  five 
hundred  a  season,  upon  the  basis  of  the  dilference  between 
this  number  and  such  larger  cat.  h  as  in  the  t)pinion  of  the 
arbitrators  might  have  been  taken  without  an  undue  diniin* 
utioii  of  the  seal-herds. 

The  amount  awarded,  if  any.  in  either  i-ase.  shall  be  such  as 
iinder  all  the  circumstances  is  just  and  eciuitable,  and  shall  he  40 
promptly  paid. 

Artiilr  (5. 

This  convention  may  be  denounced  by  either  of  the  high 
contracting  parties  at  any  time  alter  the  thirty-first  day  of 
October,  one  thousand  eight  hundred  and  ninety-three,  on 
givingto  the  other  party  tv'o  months"  notice  of  its  termination, 
and  at  the  expiration  of  such  notice  the  c(mvention  shall  cease 
to  be  in  force. 

Attid,   7. 

The   present   convention    shall    be  duly    ratified    by    Her 
Britannic  .Majesty  and  by   the    President  of  the  United  States  50 
of  America,  by  and  wilh  the  advice  and  consent  of  the   senate 
thereof:  and   tlie   ralilications  shall   be  exchanged   either  at 
London  or  at  Washington  as  early  as  possible. 

In  faith  whereof,  wc,  the  res])cctive  plenipotentaries,  have 
Higne<l  this  convention  and  have  hereunto  atHxed  our  seals. 

Done  in  duplicate  at  Washington  this  eighteenth  day  of 
.\pril,  one  thousand  eight  hundred  and  ninety-two. 

JULIAN  I'AUXGKFOTK. 
JAMKS  G.  liLAlNE. 


m 


Mil' I 

I!  '    .1 


AXNKX  4. 

(Kiiglish  Version.) 

Awiiril  (if  the  Thlnninl  nf  Arliilrnlinn  rutistHntiil  umhr  Ihr 
Traill/  rntirliKltil  at  iV-fsA //(///(.•»,  2lV/t  Frliriiiiri/,  18!t2, 
between  the  Vnilfd  Stotts  of  Amiricn  miil  ILr  Mujc.iti/,  the 
Qiiicv  of  Ihf  I'liiled  KiiKjdam  of  Gnat  Britnin  and.   Ireland, 

Whoreiirt  l\v  a  tR'aty  bctwooii  the  United  States  of  America 
and  Oreiit  Uritain,  signed  at  Wasliington  the  '2\Hh  Kcl)rnary, 
1892,  the  ratifications  ol  wliieli  l)_v  the  sjoveninientsot' tlie  two 

10  eountries  were  extlianired  at  London  on  the  7th  May,  1892,  it 
was,  amongst  otlier  things,  agreed  and  conehnh'd  tliat  the 
questions  whieii  had  arisen  hetwoen  tlie  government  of  tlie 
United  States  of  America  and  the  government  of  Her 
Britannic  Majesty,  coneerning  tiio  jurisdictional  rights  of  tlie 
United  States  in  the  waters  of  Hehring  8ea,  and  concerning 
also  the  jireservation  of  the  fur  seal  in  or  hahitually  resorting 
to  the  said  sea,  and  the  rights  of  the  citizens  ami  snhjects  of 
either  country  us  regards  the  taking  ot  fur  seals  in  or  hahit- 
ually resorting  to  the  said   waters,  should   be  submitted  to  a 

20  tribunal  of  arbitration  to  be  composed  of  seven  arbitrators, 
who  siiould  be  appointed  in  the  toUowing  manner,  that  is  to 
say  :  two  should  i)e  named  by  the  ['resident  of  the  United 
States;  two  should  be  named  by  Her  Britannic  Majesty;  His 
Excellency  tlie  President  of  the  French  Hei)ublic  should  be 
jointly  re(iuestiul  by  the  high  contracting  parties  to  name  one; 
His  Majesty  the  King  of  Italy  should  be  so  reipiested  to  name 
one  :  His  Majesty  the  King  of  Sweden  and  Norway  should  be 
so  requested  to  name  one;  the  seven  arbitrators  to  be  so 
named  should  lie  jurists  of  distinguished   reputation   in  their 

.'50  res|iectivc  countries,  and  the  selecting  powers  should  be 
recpiested  to  choose,  if  possible,  jurists  who  are  acijuainted 
with  the  Knglish  language; 

And  whereas  it  was  further  agreed  by  article  11.  of  the  said 
treaty,  that  the  arbitrators  should  meet  at  I'aris within  twenty 
days  after  the  delivery  of  the  counter-cases  mentioned  in 
article  1\'.,  anil  should  proceed  impartially  ami  carefully  to 
examine  and  decide  the  (piestions  which  had  been  or  should 
be  laid  before  tbeni  as  in  the  said  treaty  provided  on  the  part 
of  the  governments  of  the  United  States  and  of  Her  liritannie 

40  Majesty  respectively,  and  that  all  (luestions  considered  by  the 
tribuiuil,  including  the  final  decision,  should  be  determined  by 
a  majority  of  all  the  arbitrators; 

And  whereas  by  artii-lo  VI.  of  the  said  treaty,  it  was  fur- 
ther provided  as  lollows  : — 

"  In  deciding  the  matters  aubtnitted  to  the  said  arbitrators, 
it  is  agreed  that  the  following  live  points  shall  be  submitted  to 
them  in  order  that  their  award  shall  embrace  a  distinct 
decision  upon  each  of  said  five  points,  to  wit: 

"1.  What  exclusive  jurisdiction  in  the  sea  now  known  as 
50  the  Behring  Sea,  and  what  exclusive  rights  in  the  seal  tisheries 
therein,  did  Russia  as'"rt  ami  exercise  jirior  and  up  to  the 
time  of  thecossion  of  A'aska  to  the  United  States. 

"  2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal 
tisheries  reeogni/.e<l  and  eoncecled  by  (4reat  liritain? 

"  ,\.  Was  the  body  of  water  now  known  as  the  Behring  Sea 
included  in  the  phra.se  "  I'aeilic  Ocean,"  as  used  in  the  treaty 

197 


4 


''->' 


,a 


198 


ANNEX   4. 


he 


ori82r),  hotwccii  Grout  l?iit;iiii  uiid  Ilimia  ;  ami  wliiit  riijlitfl, 
if  any,  ill  tlio  liehriiii;  Sou  were  licld  ami  i'Xciii»ivolyt'xorciBeil 
l)y  liiiBsia  utter  naitl  treaty? 

"4.  Did  not  all  the  ritjlits  ot' linssia  as  to  iiMiudictioii  and 
as  to  the  seal  ti-<heries  in  Hchriii:;  ^"'a  east  <>t  tlif  water 
boundary. in  the  treaty  lielween  tin-  I'nitcd  States  and  IJiissia 
of  file  IJOtli  Vlareii,  18t>7,  pass  nniiii|iain'd  to  the  United 
States  under  llint  tri-aty? 

"5.   Has  the  I'nited  Statis  any  rijrht,  and  if  so.  wiiat    rifjht 
of  [trotection    or   ]ir()|iei'ty  in   the  fur  seals    freijiii-  itinjj    the  10 
islands  of  tlie  United  Slates  ill  I5i'hi-injf   Sea    when   sneh   seals 
are  found  outside  the  ordinary  S-ndle  limit 'r  "' 

And  whereas  iiy  article  VI r.  of  the  said  tn-afy  it  was  fur- 
ther afijreed  as  follows: — 

"  If  the  di'terniination  of  thi'  fori'jrointj  ijiit'stions  as  to  flu 
exclusive  Jurisdiction  of  the  Tnited  State-  shall  leave  the  suh 
ject  in  sucli  position  that  the  coueiirrenee  of  (ircat  Hritain  is 
necessary  to  the  estahlishinent  of  rcirulafions  for  the  proper 
protection  and  preservation  of  the  fur  seal  in  or  hahitiially 
resortinij  to,  the  Behrini;  St'a.  the  arhitrators  shall  then  deter-  '20 
mine  what  concurrent  rciriilations.  oiitsi<le  the  jurisdictional 
limits  of  the  r(>spective  i^ovei'nments.  an'  necessary,  and  over 
what  waters  such  regulations  shoiiM  extend  : 

"The  high  contracting  parties  furthermore  agree  to  co- 
operate in  sccuiing  the  ailhesion  ot Other  powrs  to  siuh  regu- 
lations." 

And  whereas,  hy  .Vrticle  VIII.  of  the  said  treaty,  after  re- 
citing that  the  high  contracting  i>arties  had  loiind  themselves 
iinalile  to  agree  upon  a  reference  whicdi  should  include  the 
(piestion  of  the  liahility  ot  each  for  the  ii.juries  alleged  to '>0 
have  been  sustained  hy  the  other,  or  hy  its  citizens  in  con- 
nection with  the  claims  pre-ented  and  urged  hy  if,  and 
that  "the}'  were  solicitous  that  this  suhordinate  fpiestion 
should  not  interrupt  or  longer  delay  the  suhmission  and 
defermi'iafion  of  the  main  ijucstions."'  the  high  contracting 
parties  agreed  that  "  either  of  them  might  suhniit  to  the  arhi- 
trators any  ipiestion  of  t'-.u-t  invDlved  in  said  claims  and  ask 
for  a  finding  theretui.  the  question  ot  the  liahility  of  either 
government  U|i(in  the  tiicts  found,  to  lie  tin-  subject  of  further 
negotiation;''  -lO 

And  whereas  the  rresicleiit  ot' the  I'liited  ."^tates  of  America 
mimed  the  llonouralile  .lojjn  M.  Ilarl.in.  .(ustice  of  the 
Supreme  Court  of  the  United  States,  and  the  lloiiouiable  John 
T.  Morgan.  Senator  of  the  United  States,  to  lie  two  of  the  said 
arbitrators;  and  Her  Hritannic  .Majes-fy  named  the  Hight 
Ifonourable  Lord  Ilannen  ami  the  Honourable  Sir  .(ohn 
Thompson,  Minister  of  .lustice  and  Attorney  <icneral  for  Can- 
.ida.  to  be  two  of  the  said  aibitiators  :  ami  His  Kxccllency  the 
President  of  the  l-'reiirh  Kepnblic,  nameil  the  Haron  de  C.'oiir- 
cel,  Semitor,  .\mbassador  ol  Uraiicc,  to  be  one  of  the  said  arbi-  ■^" 
trators;  and  His  Majesty  the  K'iiig  if  Italy  named  the  Maripiis 
Kinilio  Viscoiiti  X'enosta,  fornnT  Mini-tcr  of  Foreign  Affairs 
and  Senator  ol'  Ihr  Kingdom  of  Italy,  to  be  one  ot'  the  said 
arhitiafors  ;  and  His  Majcs'y  the  King  of  SwediMi  and  Xorway 
named  Mr.  (iregers  (tram,  Minister  of  .State,  to  be  one  of  the 
said  arhitrators  ; 

And  whereas  we,  the  said  arliitrators,  so  named  and  ap- 
[loinled,  having  taken  upon  o.irsehes  the  burden  of  the  said 
arbilration,  ami  having  duly  met  at  I'ari-.  procci'ded  impar- 
tially and  carefully  to  I'xamine  and  ilecide  all  the  ipiestioiis  (jq 
submitted  to  us  the  said  arbitrators,  under  flu-  said  treaty,  or 
laid  before  us  as  pidvi<lcd  in  the  said  treaty  on  the  part  of  the 


ANNKX    4. 


19!» 


govcrnmunts  ot  Hit  Briliinnic  Mjijosty  uiul  tlic  United  States 
rosiK-c-tivcly 

Now  wo,  the  said  iirl)itrator.-i,  liaviiiij  iinpartiiilly  and  care- 
t'lilly  examinod  tlio  naid  <iueHti()iis,  do  in  like  nia  iiier  by  tliiri 
our  award  decide  and  detcnuine  tlie  »:i\d  (iiientions  in  manner 
following,  that  is  to  say,  we  decide  and  detcrniine  as  to  tlie 
five  points  mentioned  in  Article  \'I.,  as  to  which  our  award 
10  is  to  embrace  a  distinct  decision  upon  each  '  f  them  ; 

As  to  the  tirst  ot  the  said  live  points,  we,  the  said  IJaron  de 
Courcel,  Mr.  .Justice  llarian.  Lord  llannen,  Sir  John  Thomp- 
son, iManjuis  V'iseouti  V'enosta,  an  i  Mr.  (4regers  (}ram,  being 
a  majoritv  of  the  said  arbitrators,  do  decide  and  iletermine  as 
as  follows  : — 

By  the  Ukase  of  1821,  Russia  claimed  jurisdiction  in  the  sea 
now  known  as  the  Hehring  Sea,  to  the  extent  of  100  Ttalinn 
miles  from  tlie  (roasts  and  islands  l)elonging  to  her,  but  in  the 
couiae  of  the  negotiations  which  led  to  the  conclusion  ol  the 

20  treaties  of  18_'4  with  the  I'nited  States,  and  of  1825  with 
Great  Britain,  Russia  admitted  that  her  jurisdiction  in  the 
said  sea  should  be  restricted  to  th(>  reach  ot  camion  shot  from 
shore,  and  it  ajipears  that,  from  that  time  up  to  the  time  of 
the  cession  of  Alaska  to  the  United  States,  Russia  never  as- 
serted in  fact  or  exercised  any  exclusive  jurisdiction  in 
Hehring's  Sea,  or  any  exclusive  rights  in  the  seal  fisheries 
therein  beyond  the  ordinary  limit  of  territ>  rial  wafers. 

As  to  the  second  of  the  said  five  points,  we.  the  said  Baron 
de   Courcel,    Mr.    Justice    Harlan,    Lord    llannen.    Sir   .lohn 

30  Thompson,  Manpiis  A'isconti  N'enosta,  and  Mr.  GregersGram, 
being  a  majority  of  the  said  arbitrators,  do  decide  and  deter- 
mine that  (ireat  Britain  did  not  recognize  or  concede  any 
claim,  upon  the  part  ot  Russia  to  exclusive  jurisdiction  as  to 
the  seal  fisheries  in  Behring  Sea,  outside  of  ordinary  territorial 
wat  rs. 

As  to  the  third  of  the  said  five  points,  as  to  so  mu'.-h  thereof 
as  retpiires  us  to  decide  whether  the  body  of  water  now  known 
as  the  Behring  Sea  was  included  in  the  phrase  *'  Pacific  Ocean," 
as   used    in    the    treaty    of  iNiio    between   (iri'al    Britain   and 

•K)  Russia,  we,  the  saiil  arliitrators,  do  unanimously  decidt;  and 
determine,  that  the  boily  of  water  now  known  as  the  Behring 
Sea,  was  included  in  th''  phrase  "  I'acilic  Ocean  "  as  used  in 
the  said  treaty. 

And  as  to  so  much  of  the  said  third  point  as  rc(|nires  us  to 
decide  whiit  rights,  if  any,  in  the  Behring  Sea  were  held  and 
exclusively  exerci-eil  by  Russia  after  the  said  treaty  of  1825, 
we,  the  saiil  Baron  de  (.'ourcel,  .Mr.  .lustioe  Harlan,  Loitl  llan- 
nen. Sir  .lohn  Thompson,  Mar(|uis  Visconti  N'enosta,  and  .Mr. 
(Ircgers  Gram,   being  a    majority  of  the  said  arbitrators,  do 

ijO  decide  and  determine  that  no  exclusive  rights  of  jurisdiction 
in  liehring  Sea  ami  no  I'xelusive  rights  as  to  the  seal  fishei'ies 
therein,  were  lield  or  exercised  by  Russia  outside  of  ordiiniry 
territorial  waters  after  the  treaty  of  182o. 

As  to  the  fourth  of  the  said  five  |(oints,  we,  the  said  arbitra- 
tors, do  unanimously  decide  ami  determine  that  all  the  rights 
of  Russia  as  t.ijnrisdictiini  and  as  to  the  seal  lisherics  in  Itchiing 
Sea,  east  of  the  water  boundary,  in  the  treaty  between  the 
United  States  ami  Uussia  of  the  ilOth  .March,  I^(i7,  did  pass 
unimpaired  to  flu;  United  States  under  the  said  treaty. 

tin  .\s  to  the  filth  of  the  .-aid  five  points,  we  the  .said  Karon  de 
(.'ourcel.  Lord  llannen.  Sir  .John  Thompson,  Maniuis  \"isconti 
Venosta,  and  .Mr.  (Jregers  (iram,  being  a  nnijority  of  the  said 
arbitrators,  do  decide  and  deteiinine  that  the  I'nited  States  has 
!iot  any  right  ofprotecti"uor  property  in  tliu  fur-seals  fVe'|Uenl- 


(i 

m 


m 


200 


ANNKXB    4. 


i   li.'' 


iiig  th((  isliuidrt  of  the  Ihiitod  Stafos  in  tlio  Boliring  Son,  wlicii 
siitli  sciilri  iii'o  tuiinil  outside  the  ordinavv  3-iriilt'  limit. 

And  wliorcas  the  ut'oiv^^aid  determination  of  thi*  foregoing" 
(picstions  as  to  the  exehinivo  jurisdiction  of  tlie  United  States 
mentioned  in  artiele  \'I.  loaves  the  subject  in  such  a  position 
that  the  concurrence  of  (J rent  Britain  is  necessary  to  the  estu- 
hlishment  of  regulations  for  the  proiier  protection  and  jireser- 
vation  of  tlie  fur-seal  in  or  habituallv  resorting  to  the  Hehring 
Sea,  the  tribunal  having  decided  by  a  majority  as  to  each  art- 
icle ot  the  following  regulations,  we,  the^aid  liaron  de  Courcel,  10 
Lord  Hannen,  Manjuia  Visconti  Wnosta,  and  Mr.  Gregers 
Oram,  assenting  to  the  whole  o\'  tlu'  nine  articles  of  the  follow- 
ing regulations,  and  being  a  majority  of  the  said  arbitrators, 
do  decidi'  and  determine  in  the  mode  provided  by  the  treaty, 
that  the  following  concurrent  regulations  outside  the  jurisdict- 
ional limits  of  the  respei'tive  governments  are  necessary,  and 
that  they  should  extend  over  the  waters  hereiiuifter  mentioned 
that  is  to  say  :  (M\'re  follow  regulations.) 

And  whereas,  the  government  of  Iler  Hritannic  Majesty 
did  subn'it  to  the  tribunal  of  arbitration,  by  article  VTIT.  of -*^ 
the  said  treaty,  certain  ([ucstioiis  of  factt  involved  in  the  claims 
referred  to  in  the  said  Article  V'li  I.,  and  did  also  submit  to  us, 
the  said  tribunal,  a  statement  of  the  said  facts,  aa  follows,  that 
18  to  pav  : — 


Fhhliiiijtii  itf  fiivl  i>i-iip<ts-<l  III/  lid  (iijint  i)f  (Uri'i't  Britain  ami 
(iijneil  In  lis pror^il  liij  Ihr  iiijeiit  fur  the  Uiiitnl  Stab's,  ninl 
sulmiittal  In  the  Trihunal  <if  Arhitriitint,  for  its  consiilera- 
tio». 

"  1.  That  the  several  searches  and  seizures,  whothorof  ships 
or  goods,  and  the  several  aiiests  of  niasters  and  crews,  respi'c-  .jo 
ti\ely  mentioned  in  tin'  scheilule  to  the  Mritish  ca^e,  pp.  1  to 
<!0,  inclusive,  were  nuide  by  the  authority  of  the  I'nited  States 
government.  The  (|uestiona  as  to  the  value  ot  the  said  vessels 
or  their  contents,  or  either  ot'  them,  ami  tiie  question  aa  to 
whether  the  vessels  nieiitioned  in  the  schedule  to  the  Hritish 
ease,  or  any  ot  them,  w  licre  wholly  or  in  jiart  the  actual  pro- 
perty ot  citizens  of  the  I'nited  States,  have  been  withdrawn 
from,  and  have  not  been  considered  by  the  tribunal,  it  being 
uiulerstood  that  it  is  open  to  the  I'liited  States  to  raise  these 
(piestions,  or  any  ot  them,  if  they  think  lit  in  any  future  negotia-  40 
tions  as  to  the  liability  of  the  I'nited  States  government  to  pay 
the  amounts  mentioned  in  the  schedule  to  the  I'.ritish  case. 

"2.  Tlnit  the  seizures  aforesai'l.  with  the  exception  of  the 
"  Pathtinder"  seize<l  at  Neah  May,  were  made  in  Mehring  Sea 
at  tlie  distances  from  shore  mi'utioned  in  the  schedule  aimexed 
hereto,  marketl  (< '). 

"3.  That  the  said  several  searches  and  seizures  of  vessels 
were  made  by  pid)lic  armed  vessels  of  the  I'nited  States,  the 
commanders  of  svhich  ha<i,  at  the  several  times  when  they  were 
nnide,  from  the  executive  department  of  the  government  of  the  50 
United  States.  instruiUions  a  copy  of  one  of  whii-b  is  annexed 
hereto,  marked  (.\)  and  that  the  other.-  were,  in  all  substantial 
respects,  the  same.  That  in  all  the  instances  in  which  |iroceed- 
ings  were  hail  in  till' district  courts  of  the  United  States  re- 
sulting in  condeinnalion,  -^uch  iiroceedings  were  begun  by  the 
liling  of  libels,  a  copv  ofoiu'of  which  is  aimexed  hereto,  marked 
(15).  and  that  the  libels  in  other  jiroceeilings  were  in  all 
substantial  respects  the  same  ;  that  the  alleged  acts  or  offences 
for  which  saiil  several  searches  and  seizures  were  made  were 
in  each  ease  doiu'  or  committed  in  Mehring  Sea  at  the  disiances  (50 
from  shore  aforesaid  ;  and  that  in  each  case  in  whi(^h  eutence 
of  coiideiuuatioii  was  passed,   o.Kccpt  in  those  cases  when  the 


ANNEX   4. 


201 


voBsels  were  released  atter  condemnation,  the  seizure  was 
adopted  by  the  government  of  tlie  United  States ;  and  in  those 
cases  in  which  the  vessels  were  released  the  seizure  was  made 
by  the  authority  of  the  United  States  ;  that  the  said  fines  and 
imprisonments  were  for  alleged  breaches  of  the  municipal  laws 
of  the  United  States,  which  alleged  breaches  were  wholly  com- 
mitted in  Behring  Sea  atthedistancesfrom  the  shore  aforesaid. 
"  4.  That  the  several  orders  mentione<l  in  the  schedule  an- 
nexed liereto  and  maked  (C),  warning  vessels  to  leave  or  not 

10  to  enter  Behring  Sea  were  made  by  public  armed  vessels  ot  the 
United  States,  the  commanders  of  which  had,  at  the  several 
times  when  they  were  given,  like  instructions  as  mentioned  in 
finding  3,  and  that  the  vessels  so  warned  were  engaged  in 
sealing  or  prosecuting  voyages  for  that  purpose,  and  that  such 
action  was  adopted  by  the  government  of  the  United  States. 

"  5.  That  the  district  courts  of  the  United  States  in  which 
any  proceedings  were  had  or  taken  for  the  purpose  of  con- 
demning any  ve^isel  seized  as  mentioned  in  the  schedule  to  the 
case  of  Great  Britain,   pp.  1  to  tiO,  inclusive,  had  all  thejuris- 

20  dictions  and  powers  of  courts  of  admiralty,  including  the  prize 
jurisiJiction,  but  that  in  each  case  the  sentence  pronounced  by 
the  court  was  based  upon  the  grounds  set  forth  in  the  libel. 


\tt 


I 


"  ANNEX  (A). 

"  Treasury  Department,  Office  of  the  Secretary, 

"  WASinNGTON,  April  21,  1886. 

"  Sir, — Referring  to  department  letter  of  this  date,  direct- 
ing you  to  proceed  with  the  revenue  steamer  '  Bear,'  under 
your  command,  to  the  seal  islands,  &c.,  you  are  hereby  clothed 
will  full  power  to  enforce  the  law  contained  in  the  provisions 
30  of  section  1956  of  the  United  States  revised  statutes,  and 
directed  to  seize  all  vessels  and  arrest  and  deliver  to  the  proper 
authorities  any  or  all  persons  whom  you  may  detect  violating 
the  law  referred  to,  after  due  notice  shall  iiave  been  given. 

"  You  will  also  seize  any  liquors  or  li rearms  attempted  to 
be  introduced  into  the  country  without  proper  permit,  under 
the  [trovisions  of  section  1955  of  the  revised  statutes,  and  the 
proclamation  of  the  President,  dated  the  4th  February,  1870. 

"  Respectfully  yours, 

(Signed)  "  C.  S.  B^AIRCIIILD, 

40  "  Acting  Secretary. 

"  Captain  M.  A.  IIealy, 

"  Commanding  revenue  steamer  '  Bear,' 
"  San  Francisco,  California  " 


"  ANNEX  (B.) 

"  In  the  District  Court  of  the  United  States  for  the  District 

OP  Alaska. 

August  Special  Term,  1886. 

"  To  the  Honourable  Lafayette  Dawson, 

Judge  of  said  District  Court. 

50      "  The  libel  of  information  of  M.  D.  Ball,  attori.ey  for  the 
United  States  for  the  district  of  Alaska,  who  prosecutes  on 
behalf  of  said  United  States,  and  being  present  here  in  court 
BS— 26 


Y^ 


^murtmmn 


mm* 


202 


ANNKX    4. 


in  his  proper  person,  in  the  name  nnd  on  behalf  of  tlie  said 
United  States,  against  tlie  Hchooner  '  Thornton,'  Jicr  tackle 
apparel,  boats,  cargo,  and  furniture,  and  against  all  persons 
intervening  for  their  interest  therein,  in  a  cause  of  forfeiture, 
alleges  and  informs  as  follows  : — 

"  That  Charles  A.  Abbey,  an  officer  in  the  Revenue  Marine 
Service  of  the  Ignited  States,  and  on  special  duty  in  the  waters 
of  the  district  of  Alaska,  heretofore,  to  wit,  on  the  Ist  day  of 
August,  188(3,  within  the  limits  of  Alaska  Territory,  and  in 
the  waters  thereof,  and  within  the  civil  and  judicial  district  of  10 
Alaska,  to  wit,  within  the  waters  of  that  portion  of  Hehring 
Sea  belonging  to  the  said  district,  on  waters  navigable  from 
the  sea  by  vessels  of  10  or  more  tons  burden,  seized  the 
sliip  or  vessel  commonly  called  a  schooner,  the  'Thornton,' 
her  tackle,  apparel,  boats,  cargo,  and  furniture,  being  the 
property  of  some  person  or  persons  to  the  said  attorney  un- 
known, as  forfeited  to  the  United  States,  for  the  following 
causes : 

"  That  the  said  vessel  or  schooner  was  found  engaged  in 
killing  fur-seal  within  the  limits  of  Alaska  Territory,  and  in  20 
the  waters  thereof,  in  violation  of  section   1956  of  the  revised 
statutes  of  the  United  States, 

"  And  the  said  attorney  saith  that  all  and  singular  the  pre- 
mises are  and  were  true,  and  within  the  admiralty  and  mari- 
time jurisdiction  of  this  court,  and  that  by  reason  thereof,  and 
by  force  of  the  statutes  of  the  United  States  in  such  cases  made 
and  provided,  the  afore-mentioned  and  described  schooner  or 
vessel,  being  a  vessel  of  over  20  tons  burden,  her  tackle, 
apparel,  boats,  cargo,  and  furniture,  became  and  are  forfeited 
to  the  use  of  the  said  United  States,  and  that  said  schooner  is  30 
now  within  the  district  aforesaid. 

"  Wherefore  the  said  attorney  prays  the  usual  process  and 
monition  of  this  honourable  court  issue  in  this  behalt,  aiid  that 
all  persons  interested  in  the  before-mentioned  and  described 
schooner  or  vessel  may  be  cited  in  general  and  special  to 
answer  the  premises,  and  all  due  proceedings  being  liad,  that 
the  said  schooner  or  vessel,  her  tackle,  apparel,  boats,  cargo, 
and  furniture,  may,  for  the  cause  aforci^aid,  an<l  others  appear- 
ing, to  be  condemned  by  the  detinite  sentence  and  decree  of 
this  honourable  court,  as  forfeited  to  the  use  of  the  said  United  40 
States,  according  to  the  form  of  the  statute  of  the  said  United 
States  in  such  cases  made  and  provided. 

"(Signed)        M.  D.  BALL, 

"  United  states  District  Attorney  for  the  District  of  Alasha." 


"ANNEX  (C). 


"  The  following  table  shows  the  names  of  the  British  sealing 
vessels  seized  or  warned  by  United  States  revenue  cruisers, 
1886-1890,  and  the  approximate  distance  from  land  when 
seized.  The  distances  assigned  ii',  the  cases  of  the  '  Carolena ' 
'Thornton'  and  'Onward,'  are  on  the  authority  of  United  50 
States  Naval  Commander  Abbey,  (see  50th  Congress,  2nd 
Session,  Senate  Kxocutive  Documents  No.  106,  pp.  20,  30,  40). 
The  distances  assigned  in  the  cases  of  the  'Anna  Beck,'  '  W. 
P.  Sayward,' '  Dolphin,'  and  'Grace'  are  on  the  authority  of 
Captain  Sliepard,  irnited  States  Revenue  Marine  (Blue  Book, 


ANNBX   4. 


208 


United  StntcH,  No.  2,  1890,  pp.  80- 82,     Heo  Ai>i.ciidix,  vol. 
iij)." 


Niiini'  Dati'  AiijiMxiiimlf 

<'f  "f  hi^l;(iu-»' fruni  Laihl  wliiu 


I'llitlll    StutfK 

making'  •Sii/iiri'H, 


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(hiuiiiil 

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l)i>l|>liiii   

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Alfiril  Ailuins  . . 

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di>        1,  ISSt;      T<l    iln     di. 

<|.>        1!,  I8H(!     11.^    (In      ill, 

ilii       ■_'.  IKSti    Wanii'il    liy    "('nrwiii"   in     al"iiil 
Maiiii'  iMisitiiiii  iiH  "Onwiiid." 
fid  iiiili.M. KuhIi. 

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I     "  l!u>li  "  (';)  .\s  til  |Hisltiiiii  uliiii 
waiiird 

l.SSlt.  :t."l  llliil'n do 

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30  *Nr«li  lliiy  In  ill  till' Stati- of  WaHliinKtmi,  and  tlie  "  I'atlitindii- "  wii»  Kcizi'd  tlicro 
nil  I'liai'^'rn  iiiadi*  .'ijiainst  lii'r  in  I'l'ltiin^  Sea  in  tin*  |iit'\  inns  yi-ar.  Sin- wa;*  ri'li'iisi'd 
two  davn  latir. 


And  whereas  the  government  of  ITer  Britannic  Majesty  did 
ask  the  said  arbitrators  to  find  the  said  facts  as  set  forth  in  the 
said  statement,  and  whereas  the  agent  and  counsel  for  the 
United  States  government  thereupon  in  our  presence  informed 
us  that  tlie  said  statement  of  facts  was  sustained  by  the 
evidence,  and  that  they  had  agreed  with  the  agent  and 
counsel  for  Ilcr  liritannic  Majesty,  that  we,  the  arbitrators,  if 
40  we  should  think  iit  so  to  do  niigiit  find  the  said  statement  of 
facts  to  be  true. 

Now,  we,  the  said  arbitrators,  do  unanimously  find  the  facts 
as  set  forth  in  the  said  siatenient  to  be  true. 

And  whereas  each  and  •jvery  question  which  has  been  con- 
sidered by  the  tribunal  has  been  determined  by  a  majority  of 
all  the  arbitrators. 

Now,  we.  Baron  de  CourccI,  Lord  Ilannen,  Mr.  Justice 
Harlan,  Sir  John  Thompson,  Senator  Morgan,  the  Marquis 
Viscounti  Venosta,  and  Mr.  Gregers  Gram,  the  respective 
60  minorities  not  withdrawing  their  votes,  do  declare  this  to  be 
the  final  decision  and  award  in  writing  of  this  tribunal  in  ac- 
cordance with  the  treaty. 

Made  in  duplicate  at  Paris,  and  signed  by  us  the  15th  day 
of  August,  in  the  year  1893. 

And  we  do  certity  this  English  version  thereof  to  be  true 
and  accurate. 

(Signed)         ALT'II.  DE  COURCEL. 
,IOHN  M.  HARLAN. 
JOHN  T.  MORGAN. 
UANNEN. 

JNO  S.  D.  THOMPSON. 
VJSCOUNTI  VENOSTA. 
G.  GRAM. 


GO 


^^^^"W" 


ANNEX  5. 


THE   CLAIMS    CONVENTION. 

Conrenliov  hrtwren  Grent  Brilain  mid  Ihr  rniled  States,  Signed 
Fchmmj  8,  1896. 

Whoreus.  l)y  n  troaty  botwot'ii  Her  Miijosty  the  Queen  of 
the  United  Ivinj(<l(>ni  of  Gri'iit  Hritiiin  iui<l  Irelund  and  tlie 
United  States  of  Aniorica,  sii^Miod  nt  VVasliington  on  F'cb- 
ruary  20,  18H2,  the  (Hiestionw  wliieh  had  ari.-^en  between  their 
respective  p)verniiu'nts  tonceriiing  t lie  jiirisdiitional  riglits  of 
the  United  States  in  tlio  waters  of  Hehrinj;  Sen.  and  con- 10 
cerning  also  tlie  preservation  of  the  fur-Hcal  in,  or  habitually 
resorting  to,  the  said  sea,  and  the  ri-:hts  of  the  citizens  and 
sul)jt>ets  of  cither  cniintry  as  regards  the  taking  of  fur-seal  in, 
or  habitually  resorting  to,  the  said  waters,  were  submitted  to 
a  tribunal  of  arbitration  as  therein  constituted  ; 

And,  whereas,  the  high  contracting  i)artics  having  found 
themselves  unable  to  agree  upon  a  reference  which  should  in- 
clude the  question  of  the  liability  of  each  for  the  injuries 
alleged  to  have  been  sustained  by  the  other,  or  by  its  citizens, 
in  connection  with  the  claims  presented  and  urged  by  it,  did  20 
by  Article  VIII.  of  the  said  treaty,  agree  that  either  party 
might  submit  to  the  arbitrators  any  questions  of  fact  involved 
in  said  claims  and  asked  for  a  finding  thereon,  the  question  of 
the  liability  ot  either  government  on  the  facts  found  to  be 
the  subject  of  further  negotiation  ; 

And,  whereas,  the  agent  of  (treat  Britain  did,  in  accord- 
ance with  the  provisions  of  said  article  VIII.,  submit  to  the 
tribunal  of  arbitration  certain  findings  of  fact  which  were 
agreed  to,  as  i)roved  by  the  agent  of  the  United  States,  and 
the  arbitrators  did  unanimously  find  the  facts  so  set  forth  to  30 
be  true,  as  appears  by  the  award  of  the  tribunal  rendered  on 
the  15th  day  of  August,  1803  ; 

And,  whereas,  in  view  ofthesaid  findings  of  fact  and  of  the 
decision  of  the  tribunal  of  arbitration  concerning  the  jurisdic- 
tional rights  of  the  United  States  in  Hehring  Sea,  and  the 
right  of  protection  or  property  of  the  United  States  in  the 
fur-seals  frequenting  the  islands  of  the  United  States  in  Beh- 
ring  Sea,  the  government  of  the  United  States  is  desirous  that, 
in  so  far  as  its  liability  is  not  already  fixed  and  determined  by 
the  findings  of  fact  and  the  decision  of  said  tribunal  of  arbi-  40 
tration,  the  (juestion  of  such  liability  should  be  definitely  and 
fully  settled  and  determined,  and  compensation  made  for  any 
injuries  for  which,  in  the  contemplation  of  the  treaty  aforesaid, 
and  theaward  and  findings  of  the  tribunal  of  arbitration,  com- 
pensation may  be  due  to  great  Britain  from  the  United  States ; 

And,  whereas,  it  is  claimed  by  Great  Britain,  though 
not  admitted  by  the  I'nited  States,  that  prior  to  the  said 
award  certain  other  claims  against  the  United  States  ac- 
crued in  favour  of  Great  Britain  on  account  of  seizures 
of  or  interference  with  the  following  named  British  sail-  50 
ing  vessels,  to  wit :  the  "  Wanderer,"  the  "  Wimiifred,"  the 
"Henrietta,"  and  the  "Oscar  and  I  lattie  ";  and  it  is  for  the  mutual 
interest  and  convenience  of  both  the  high  contracting  parties 
that  the  liability  of  the  United  States,  if  any,  and  the  amount 
of  compensation  to  be  paid,  if  any,  in  respect  of  such  claims, 

204 


20 


40 


ANNRX    5. 


205 


and  each  of  thorn  should  iiIho  be  dotorminod  tiiidor  tho  proviA- 
ionB  of  this  oonvontion  ;  all  claims  i)y  Great  itritaiii  under 
artiflu  V.  of  tho  modus  vivendi  of  April  18,  18!t2,  tor  tho 
abstontion  from  tiahing  of  British  rtoulur^  during  tliu  poiidonuy 
of  said  arbitration  having  bouii  dotiiiitoly  waived  before  tho 
tribunal  of  arbitration. 

Hor  Majesty  tho  Queen  of  the   l^^nitcd   Kingdom  of  (4 roat 
Britain  and  Ireland  and  tho  UiiitedStatesof  Ameriiui,  to  thoond 
of  concluding  a  convention  for  that  purpose,  have  appointed  as 
10  their  respective  plonipotuntiaries  : 

Her  Majesty  the  Queen  of  tho  United  Kingdom  of  Great 
Britain  and  Ireland,  the  Right  Honourable  Sir  Julian  Paunce- 
fote,  (tI.C.B.,  G.C.M.(}.,  Her  Majesty's  Ambassador  Kxtra- 
ordinary  and  I'lonipotentiary  to  tlio  United  States;  and  Pre- 
sident of  the  United  States,  tho  Honourable  Richard  Oliiey, 
Secretary  of  State ; 

Who,  after  having  communicated  to  each  other  their  res- 
pective full  powers,  which  were  found  in  duo  aid  proper  form, 
have  agreed  to  and  concluded  the  following  articles  : — 


20 


Article  1. 


The  high  contracting  parties  agree  that  all  claims  on  account 
of  injuries  sustained  by  persons  in  whose  behalf  Great  Britain 
is  entitled  to  claim  compensation  from  the  United  States,  and 
arising  by  virtue  of  the  treaty  aforesaid,  the  award  and  the 
findings  of  the  said  tribunal  of  arbitration,  nsalso  the  additional 
claims  specified  in  the  fifth  paragraph  of  tho  preamble  hereto, 
shall  be  referred  to  two  commissioners,  one  of  whom  shall  be 
appointed  by  Her  Britannic  Majesty,  and  the  other  by  the 
President  of  the  United  States,  and  each  of  whom  shall  be 
30  learned  in  law. 

Appended  to  this  convention   is  a  list  of  claims  intended  to 
^n  referred. 

Article  2. 

The  two  commissioners  shall  meet  at  Victoria,  in  the  pro- 
vince of  British  Columbia,  Canada,  as  soon  as  i)racticable  after 
the  exchange  of  the  ratifications  of  this  convention,  and,  after 
taking  an  oath  that  they  will  fairly  and  impartially  invest- 
igate the  claims  referred  to  them  and  render  a  just  decision 
thereon,  they  shall  proceed  jointly  to  the  discharge  of  their 
duties. 
40  The  commission  shall  also  sit  at  San  Francisco,  California, 
as  well  as  Victoria,  provided  that  either  commissioner  shall  so 
request,  if  he  shall  be  of  opinion  that  the  interests  of  justice 
shall  so  require  for  reasons  to  be  recorded  on  the  minute. 


60 


Article  3. 

The  said  Commissioners  shall  determine  the  liability  of  the 
United  States,  if  any,  in  respect  of  each  claim,  and  assess  the 
amount  of  compensation,  if  any,  to  be  paid  on  account  thereof 
— so  far  as  they  shall  be  able  to  asjree  thereon — and  their 
decision  shall  be  accepted  by  the  two  governments  a    **  .al. 

They  shall  be  authorized  to  hear  and  examine,  on  oath  or 
affirmation,  which  each  of  said  commissioners  is  hereby  em- 
powered to  administer  or  receive,  every  question  of  fact  not 
found  by  tho  tribunal  of  arbitration,  and  to  receive  all  suitable 
authentic  testimony  concerning  the  same;  and  the  government 
of  the  United  States  shall  have  the  right  to  raise  the  question 


f06 


ANNIX   6. 


of  its  liability  before  tlio  unmmiRaioiiora  in  any  cane  where  it 
shall  be  proved  that  the  vessel  was  wholly  or  in  part  the  aotiial 
property  of  a  citizen  of  the  United  States. 

The  said  cominiBsion  when  Hitting  at  Bon  Francisco  or 
Victoria,  shall  have  and  exercise  all  such  powers  for  tlio  pro- 
curement or  enforcement  of  testimony  as  may  heroatler  be 
provided  by  appropriate  legislation. 

Article  4. 

The  commissioners  may  appoint  a  secretary  and  a  clerk  or 
clerks  to  assist  them  in  the  tratmaction  of  the  business  of  the  10 
commission. 


Article  5. 

In  the  cases,  if  any,  in  which  tlie  commissioners  shall  fail  to 
agree,  they  shall  transmit  to  each  government  n  Joint  report 
stating  in  detail  the  points  on  which  they  ditl'er,  and  the 
grounds  on  which  their  opinions  have  been  formed  ;  and  any 
such  difference  shall  be  referred  for  final  adjustment  to  an 
umpire  to  be  appointed  by  the  two  governments  jointly,  or,  in 
case  of  disagreement,  to  be  nominated  by  the  President  of  the 
Swiss  Confederation  at  the  request  of  the  two  governments.       20 

Article  6. 

In  case  of  the  death,  or  incapacity  to  serve,  from  sickness  or 
any  other  cause,  of  cither  of  the  tw  commissioners,  or  of  the 
umpire,  if  any,  his  place  shall  be  I  d  in  the  manner  herein 
provided  for  the  original  appointih     t. 

Article  7. 

Each  government  shall  provide  for  the  remuneration  of  the 
commissioner  appointed  by  it. 

The  remuneration  of  the  umpire,  if  one  should  be  appointed, 
and  all  contingent  and  incidental  expenses  of  the  commission  30 
or  of  the  umpire  shall  be  defrayed  by  the  two  governments  in 
equal  moieties. 

Article  8. 

The  amount  awarded  to  Great  Britain  under  this  convention 
on  account  of  a  y  claimant  sholl  be  paid  by  the  government 
of  the  United  States  to  the  government  of  Her  Hritannic 
Majesty  within  six  raor.ths  after  the  amount  thereof  shall  have 
been  finally  ascertained. 

Article  9. 

The  present  convention  shall  be  duly  raffled  by  Her  Eritan-  40 
nic  Majesty,  and  by  the  President  of  the  United  States  of 
America,  by  and  with  the  advice  and  consent  of  the  Senate 
thereof;  and  the  ratifications  shall  be  exchanged  either  at 
London  or  at  Washington  within  six  months  from  the  date 
hereof,  or  earlier,  if  possible. 

In  faith  whereof,  we,  the  respective  plenipotentiaries,  have 
signed  this  convention,  and  have  hereunto  atfixed  our  seals. 

Done  in  duplicate  al;  Washington,  the  8th  day  of  February, 
1896.  50 

[L.S.]        JULIAN  PAUNCEFOTE. 
[L.S.]        RICHARD  OLNEY. 


i 


ANNBX   S. 


207 


Appendix  of  (Jlaimh. 
Claims  Hubinittud  to  tho  Tribiiniil  of  ArMtnitioii  iit  I'arifl. 


Nulllr  iif  Vl'iwfl. 

' 

)itli< 
•  if 

.\|i|irii\iiinili' 
iliKtaiui'    fnihi 

rnitiil  Stall"  Vi -.1 1  making 

Mi>i/.nri>H, 

H.' 

iKiin 

liillil  wlliil  M'lxi'il 

Mil... 

Cui'ntt'llH 

Au(t. 

1, 

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Ciirwiii. 

'riinriitoii 

ill. 

1. 

•8tl                70 

ili> 

ninviinl    

ill. 

.1 

•*l             11.'. 

•III 

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llu 

2, 

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WariiMl   Itv  Ciirwin  in  aUmt   hiuik 

in 

iKMltiiiii  iiH  Onwaril. 

^"  Aiiiiii  ll.rk  .      . 

.Inlv 

2, 

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WariiHl  liy  Un-li  nut  ImntiT  lli'lir- 

'u\u  S-a. 
Kiisll. 

•  Ill 

.Inlv 
•III 

III, 

27. 

'Ml                  lili 
'Mil                     .'>l» 

OA  I'litlilimlir  . .    . 
-"  Tiiinnpli 

•  III 

II. 

'«'.! 

Oiiliiiil  lint  III  llflirlM((f*<'al'V  lln»li 

tiuiTV  an  til  iiiir.itiiin  wlicii  uariii-i|. 

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•  III 

II. 

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1    ii^y 

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dO 


lVr»iiiinl  ilainiH       IHWl 

■  Ih             1HH7 

Cii.tlH  in  "  .Siiywaiil  "  caif. 

AnniTliiS.M.    ('I..MMS. 

Wanih'nr 1887  HI) 

Winiiifiv.1 18i)l 

11.111  i.tta 18!ia 

OHuaranil  ilalti^' 18112 


is'lP: 


ANNEX  6. 

50  Victoria,  Chap.  2. 

an  act  rksl'kctino  the  uehrino  sba  claims  convention. 

{Assented  to  23n/  April,  1896.] 

Her  Majesty,  by  and  with  the  advice  and  consent  of  the 
Senate  and  House  of  Conimous  of  Canada,  enacts  as  follows  : — 

1.  The  convention  or  treaty  of  the  eighth  day  of  t'ohniary, 
one  thousand  eight  hundred  and  ninety-six,  which  is  set  forth 
in  the  schedule  to  this  Act,  is  hereby  assented  to. 

3.  The  commissioners  appointed  or  to  be  appointed,  pur-  10 
suant  to  the  said  convention  or  treaty,  or  pursuant  to  the  said 
convention  or  treaty  as  finally  ratified  by  the  high  contracting 
parties,  shall  have  all  such  powers,  rights  and  privileges  as  are 
vested  in  the  Supreme  Court  of  British  Columbia  or  the  Ex- 
chequer Court  of  Canada,  or  in  any  judge  of  either  of  the  said 
courts,  on  the  occasion  of  any  action  or  proceeding,  in  respect 
of  tlie  following  matters  • — 

(i.)  the  enforcing  the  attendance  of  witnesses,  and  examining 
them  on  oath,  alfirniation  or  otherwise  ; 

(ii.)  the  compelling  the  production  of  documents  and  things ;  20 
and 

(iii.)  the  punishing  persons  guilty  of  contempt ; 
and  a  summons  signed  by  the  commissioners,  or  one  of  them, 
or  by  the  secretary  of  the  commissioners,  may  be  substituted 
for  and  shall  be  cciuivulcnt  to  any  formal  process  that  can  be 
issued  in  any  such  action  or  proceeding  for  enforcing  the  attend- 
ance of  witnesses  or  compelling  the  production  of  documents 
and  things. 

2.  A  warrant  of  committal  to  prison  issued  for  the  purpose 

of  enforcing  the  powers  conferred  by  this  section  shall  be  signed  30 
by  the  commissioners,  or  by  such  seeretary,  and  shall  sjiecify 
the  prison  to  which  the  offender   is   to   bo   committed,  and 
shall  not  autliorize  the  ini[irisonment  of  the   oliender  for  a 
period  exceeding  three  months. 

;i.  Every  person  who  on  examination  on  oath  or  alhrniation 
before  the  commissioners  wilfully  gives  false  evidence  shall  be 
liable  to  the  penalties  for  perjury. 

••  Iler  Majesty  the  Queen,  the  Government  of  the  T''^nited 
States,  claimants   under  the  convention  or   treaty,  and  any 
person  who  may  be  so  authorized  by  the  commissioners,  may  ^q 
ap[iear  before  the  commissioners,  by  counsel  or  solicitor. 

(Schedule  not  printed.) 


208 


'!     I 


ANNEX  7. 


An  Act  to  provide  for  the  lultilment  of  the  stiimlations  of  the 
Treaty  between  the  United  Stutcs  and  Groat  Britain 
signed  at  Washington  on  the  eighth  day  of  February, 
1896. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled.  That 
the  sum  of  seventy-live  thousand  dollars  or  so  much  thereof 
as  may  be  necessary,  is  hereby  appropriated,  out  of  any  money 

ly  in  the  Treasury  not  otherwise  appropriated,  to  be  expended 
under  the  direction  of  the  Secretary  of  State,  with  the  ap- 
proval of  the  President  of  the  United  States  in  fultiling  the 
stipulations  of  the  Treaty  between  the  United  States  and 
tJreat  Britain  signed  at  Washington  on  the  eighth  day  of 
February,  eighteen  hundred  and  ninty-six.  And  the  Commis- 
sion constituted  by  said  Treaty,  when  sitting  at  San  Francisco, 
shall  have  power  to  compel  the  attendance  and  testimony  of 
witnesses  by  application  to  the  Circuit  Court  of  the  United 
States  for  the  ninth  circuit,  which  said  court  is  empowered 

OQ  and  directed  to  make  all  orders  and  issue  all  processes  necessary 
and  appropriate  to  that  end. 

Approved,  May  7,  1896. 


B8— 27 


209 


iR;  !"'Wr"!W!'''F 


ARGUMENT  FOH  THE  UNITED 
STATES  IN  REPLY. 


WASHINGTON: 

GOVERNMENT    PRINTING    OFFICE. 
1897. 


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BERING  SEA  CLAIMS  COMMISSION. 


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CONTENTS. 


If 

4 

'    '1 


Page. 

INTUODUC'IOEY  STA'IKMENT 1-12 

An  to  reflections  upon  the  UnHed  Statcn 1 

Ut'preseiitative  stiiteinents  in  the  Atjiunient  of  Great  Brit- 
ain, and  cominciitH  thereon 5 

AHegecl  "  Insults  to  Hag,"  and  comments 8 

Comparative  unimportance  of  the  claims 11 

Summary  of  positions  in  keply 12-Ut 

The  international  law  applicahle  here 19-39 

The  questions  ruled  by  authoritative  and  positive  law,  as 
settled  by  treaties,  Jntlgments  of  international  tribunals 

and  of  courts 19 

As  a]>plie(l  to  the  claims 20 

Scope  and  interpretation  of  the  convention 22-;«) 

•Turisdiction  under 22, 24, 33 

Construction  in  general 23 

Prior  diplomatic  correspondence  can  not  enlarge 23, 24, 32 

No  ambiguity;  plain  reference  of  specitic  matters  to  the 

Commission 25 

Precedents  and  authorities 27 

No  other  clain>s  referred  than  those  specified 32 

Analysis  of  convention 33 

Claims  of  specified  "  persons"  referred 3(1, 37 

Persons  in  whose  iieualf  Great  Britain  can  not  inter- 
vene INDER  THK  CONVENTION 49-60 

liritinh  Muhject  domieilcd  in  the  United  States  a  ciril  eitixen 

of  latter  notion 49 

Term  ''  liritish  subjects"  intentionally  omitted 41 

Kvidence  of  domicile 43 

Owes  obedience  to  laws  of  the  United  States 44 

And  allegience  to  their  sovereign  claims 45 

I 


in^ 


II  CONTENTS. 

l»KRSOXS   IN  WHOSE   BEHALF  (tBEAT  BRITAIN  CAN   NOT  INTER- 
VENE iNDEif  THE  Convention — Contimied.  Hage. 
(ireiit  Britain  oaii  nut  nuike  reclamation  against  the  United 

.States  lor IG 

liiniit  of  (iieat  liritain's  right  to  intervene  lor  i»rotection . .  4'J 

Tim  Treaty  of  ISl "»  covers  case  of 51 

Orii/iiKtl  riti:iHK  <>/  I'nited  States   vrcn  if  ilomicilcd,  if  not 
nafHraliziil,  in   (irvat  Hritiiiii,  not  pt'mons  for  whom  tlitit 

iKitioii  villi  iiKihf  nrldnuitioii r»:?-GC 

Autiiorities  in  liritisii  Argument  analyzed 54 

Such  citizens  still  owe  iiUegiance  to  sovereign  claims  and 

extraterritorial  laws  of  I'nited  States 59 

Nation  of  domicile  can  not  make  reclamation  against  country 
of  original  allegiance  for  injuries  sutlered  in  violating  such 

iillegiance  and  laws ((3 

The  cLAnis  here  not  claims  ok  nation OG,  84 

VesSHLS— l{E(iISTUV  AM)  FLA(t   .NOT   MATERIAL  HERE 08-70 

Vessels — Nation alitv  follows  ownebshii',  not  owner- 

SIIIl'   NATIONALITY 71-81 

li'egistry  by  British  and  American  authorities  not  concln 

sive  against  anyone  except  person  securing  it 73 

It  is  a  municipal  regulation  only 74 

Authorities  in  ISritisli  argument  analyzed 71) 

I'egistry,  not  ellective  like  a  "sea  letter''  or  "ship's  pass". .  81 

The  SPECIFIC  claims  eliminated  hecause  of  ciTizENsiiir, 

civil  ob  political 8g-!»3 

Compensation  or  ''.Measure  of  Damaues" 03-148 

rriisiKvtirc  Cdtrli,  losn  of  Cdtcli,  etr 93 

I'rospective  Catch — Tiie  .ludgment  of  (ieneva 94 

ICrror  jn  opi»osing  argument  corrected 94 

Prospective  ("atcli — British  and  American  authorities 101 

I'rospe(ttive     Catch — .Judgments    of    other     International 

Tribunals 105 

Prospective  Catch — Other  judgments  of  the  courts 109 

Prospective  C'atch — Authorities  in  opposing  argument  ana- 
lyzed    110 

ComiiniKfttioii —  Waniim/s 116 

No  prospective  catch IIG 

Proper  measure 1l'4 


■'4 


CONTENTS.  Ill 

Compensation  or  -'Measitrk  of  Damages"— Continued.  I'nu.-. 

I'uiiitorji  or  rindirfirf  (lamuyen lii('» 

Aliihaiiiii  Claims  caso  not  in  point 12»i 

The  t'liarge  of  Wiintoiimw.s IL'J) 

Ueview  of  the  authorities 1.51 

J'njxmliroiin  vlaiins l.'t.J 

Kxperieuce  under  otlier  conventions 133 

Comparison  with  precedents i;{7 

Personal  claims  /or  ihimugeit  for  fnlnc  imprisonment,  etc l.'iS 

Claims  for  Irijal  xvrricvs 1 U 

Thv  mvasurv  of  caliie  of  seal  skins 1  H 

Intinst  as  ilamaijes 1  \'.\ 

Fntert'st  in  lieu  of  future  earnings  and  the  future  earnings 

also— legal  absurdity \\3 

Th«'  law  as  to  interest — authorities H4 

TiiK  Costs  in  Savwabd  Case 148 

The  Additional  Claims l.">3 

The  "Oscar  and  Hattie'"  Case I.m,  477 

OhSEKVATIONS    AIM'LYINO  ONLY    TO   LAW  ON    CERTAIN  CLAIMS  !.")(» 

The  "  I'athfuKkr  "  in  S'cah  Ha;/ I  .">(! 

The  "  lilnrh-  l>iamonil"  \o.  r, l.-.,S 

•/aims  (lanilin's  ''■  itWHonaV  claim l."»S 

The  (Jarolcna,  (hiwarti,  and  Thornton  as  to  abandonment  hi/ 

claimants l.'iS 


.;■  ii- 


UnCERTAIN  CHARACTER  OF  SEAL  HUNTING 177 

No  DEFINED  "SEALING  GROUNDS"  IN  BERING  SeA 20!» 

Duration  of  the  sealincj  season  in  Bering  Sea 2-'.S 

".Method   for    computing    the    estimated    catch"   dis- 
cussed    247 

The  value  (  »f  seal  skins 2.">s 

Evidence  relating  to  value  of  vessels 2<m 

The  Carolcna ;?o;{ 

The  Thornton .tO.") 

The  Onward IJOS 

The  Anna  Heck .ilO 

The  (Irace  and  the  Dolphin 311 

The  . l(/« 3]'> 


r^Piw 


IV 


CONTENTS. 


I'KBSONAL  CLAIMS  OF  CAPTAINS  AND  MATES ;{19 

TUE  CAKOLENA .'WT 

The  TH(  tBNTON 3."»7 

The  On\vai:d 364 

The  Favoi'Kite 3t»» 

The  Black  1  >iamond  (188ti) 37."> 

The  W.  I'.  Saywahi) 38;.' 

Thk  Anna  Heck 388 

The  Alkbeu  Adams 302 

TlIK  (iBACK  and  the   DOLl'HIN 3!»,") 

The  Ada 402 

The  Triumi'H  (1SS7) 4(»S 

The  .1 UAMTA 414 

The  I'athfindeu  (188'.») 41.s 

The  Black  Diamond  (188y)  and  the  Lily 423 

The  M innie 437 

TheTkh  MPU  (1889) 442 

The  AKIEL 447 

The  Kate 457 

The  I'athfindeu  (I8!t0) 4«2 

Thi;  IIenbietta 406 

The  OscAi!  and  Haxtik 477 

The  Winifred 484 

The  Wanderer 490 


=-'"  P'"'pm 


;  ^:1 


AHOrMKNT  FOU  TIIK  UNITED  STATES  IN 
UEPI.Y. 


\i  I 


iii 


INTRODUCTORY  STATEMENT. 

Ill  siibiiiittiiij''  tlu'ir  views  to  the  Ili<>]i  Coumiissioii, 
in  rcplv  1u  tlic  iirji'iiiiu'iit  iircsciitcd  in  Ix'liiilt' of  (Ircjit 
HritJiiii,  the  iiiitlcrsi^iicd  will,  tor  tlic  ])nr|)os('s  of 
oiilcrly  and  coiivciiiciit  <t»iii|tiirisoii,  piirsiic  as  nearly 
as  may  he  tlu-  noniciiclatiin'  and  si'ijncncc  of  siihjccts 
as  found  in  the  liritisli  ari'iiniciit. 


'I'lu'  counsel  of  the  riiitcd  States  coiieeive  that 
when  their  country  comes  to  this  place  of  jiistic*',  set 
ti|)  ill  a  common  spirit  of  ^'ood  will  and  friendship 
l>y  these  twoyTeat  nations  of  eipial  dij>nity  and  e(pial 
self-respect,  it  should  liiid  that  spirit  ahidiiiji'  and  mani- 
fest not  only  at  the  altar  hut  in  all  the  ministers  of 
the  temple. 

They  as.sert  hefore  the  Trilmiial  at  the  outset,  that 
no  juriflical  purptise  can  be  served,  either  l»y  way  of 
interpn^tation  of  its  or<»anie  law  and  rule  of  action — 
the  Convention  of  1H!I6 — or  of  its  eiilifi'htment  on  the 
(pie.stioiis  of  liability  or  coiiipensatiou  pn  seiited  at  its 
bar,  by  imputations  upon  the  {^ood  faith  of  the  United 
States,  inshmatioiis  a}>auist  the  truthfulness  of  their 
ministers,  and  charges  of  wantonness  and  evil  motive 
against  theCJoveninieiit.  These  }>ervade  the  argument. 
oi  Great  Hritain  I'roni  its  introduction  until  the  close  of 
B  s 1 


p 


fpnlTJ' 


INTRODUCTORY    STATEMENT. 

its  liciuTiil  (lisciissioii.  Tlu'V  iin-  stiitciiiciits  of  |»n>nii- 
nciit  iiiiil  iiii|nrssivt'  irrclcviiiicc.  Tlu'v  jiiv  iit  wnr 
witli  tlu'  spirit  of  iirliitriitioii,  iiikI  tiic  tciidciu'vof  tlicir 
itiHiU'iirc  is  ii^jiiiist  the  jiciicnil  jifccptjiiicc  of  tliiit  )iol- 
it'V  for  tlic  iK'iifcful  scttlciiii'iit  of  iiitcriiiitioiiiil  <lis- 
])Utt'S,  tiiroii;>li  fourfs  of  coiiciliiitioii,  wliicli  is  siii<l  1)V 
{iooil  iiu'ii  of  iill  iiiitioiis  to  Ik'  till'  iinivcrsiil  dcsin'  of 
jnlviiiu'cd  liiiiiiidiity  itiid  tiic  iiijilicst  civiliziitioii. 

'riu-rc  liiis  hct'ii,  (loiil»tl«'ss.  some  |ir(»j;r('ss  towjird 
tlif  jiccoiiiplislimciit  ot  tlml  wisli,  so  vi^^oroiisiv  jim- 
fcsscd  l»y  some,  fnid  so  siiicci'clx'  felt  li\   others. 

llo\V('\('i  tliiit  iiifiy  lie,  tlic  iiiniiils  of  forensic  niid 
even  of  Jiidieiid  iliseussion  in  eoiirts  of  intei'iiiitioiiid 
jirhitriitioii  witliiii  the  piist  three  mihI  :i  hidf  deciides 
lifixf  certiiinly  not  furiiisiied  impulse  to  tlie  move- 
ment. To  all  who  have  faith  in.  ami  who  invoke  its 
sueeessfnl  issue,  such  annals  seem  to  teach  the  lesson 
that  in  our  dehales  in  these  tem|iles  of  peace  the 
advocates  of  lioth  nations  mijilit  with  profit  more 
often  have  recoiu'se  to  the  ^icutlei'  lexicons  of  war. 

The  tradition  of  Fonteuoy  furnishes  a  better  ^iiide 
for  the  exchan^^'e  of  \iews  hetweeii  nations  met  to- 
U'cther  in  courts  of  conciliation  and  jud^^nient  than 
some  of  their  recorded  precedents.* 

We  shall  submit  later  on,  when  we  take  up  the  sul>- 
ject  of  the  interpretation  of  the  treaty  and  convention, 
that  the  corres|)oudence  between  the  (»overinn«*iits, 
frajiineuts  of  which  are  referred  to  and  commented  on 
in  the  IJritisli  ar<iument  under  the  caption  "Introduc- 
tory," is  entirely  irrelevant  here. 

it  was  all  (•(•nducted,  and  ndates  t(»  a  period  prior 
t(»  the  treaty  of  \Vashin<-ton  of  February  iM),  iStJ-i, 
tmder  which  the  Paris  "^rribimal  afterwards  sat  and 
made  its  award,  and,  of  course,  many  yenrs  prior  to 
the  treaty  or  convention  un<ler  which  this  ('onunis- 
sion  sits. 

•See  (Jonova  Arb.,  vol.  2,  p.  203;  M.,  vol.  3,  p.  4Sx;  vol.  1,  p.  12,  sec.  7. 
Papers,  Treaty  of  Wasliiugtou. 


INTROmiCTOUY    STATEMENT. 

Wliiitcvcr  nt'  foiitntvcrsy  or  of  ditVcrciu'cs  iiiny 
liiivt'  Ikm'II  (lisciisscd  in  tlic  <li|iloiiiiitir  torrcspoiKlciicc 
Itctwccn  tilt'  iiiitiuiis.  tlicy  wwv  (lisposcd  of  l»v  tlu* 
trt'iity,  the  awfinl,  iiiid  the  convention.  For  tins  nnrl 
olIuT  rciisons,  wliicli  will  Itc  rct'crrcd  to  in  nnotlicr 
liliicf,  tlic  I'nitcd  Stiitt's  olijcctcd  to  its  introdnrtion 
at  tlic  li('in'in;.i'  on  tlic  i'lu-ilic  ( 'oast,  and  dcclincti  tluMC 
to  «'ncunil)('r  the  record  l»y  piittinj^'  in  answerinji'  evi- 
dence to  conii»lete  tlie  dijihiinatic  history  here  which 
was  so  t'ldlv  set  out  in  the  lonji'  record  ot  the  |troceed- 
inji's  ot  the  Paris  Triltnnal. 

The  cKncliisions  drawn  from  the  correspondence, 
as  stated  tor  the  int'orniation  ot  the  commissioners  in 
the  liritisli  arfiument,  in  so  far  as  they  reflect  upon 
the  positions  or  the  conrjnct  of  the  I'nited  States,  are 
erroneons,  and  in  nian\  res|K'cts  have  nothini:'  what- 
ever to  support  them  in  the  complete  evidence  of 
hotli  (iovernments  furnished  i»y  them  as  the  diplo- 
matic history  of  the  sultject-matter  in  the  i'aris 
record. 


or 
) 

d 
to 


Inasmuch,  Imwever,  as  these  statements  in  the 
ar^iument  of  ( Jreat  Britain  will  pass  into  the  history 
of  international  affairs,  it  is  proposed  to  take  soine 
leadinji'  ones  from  that  argument  as  representative  of 
many  and  connnent  upon  them  hrieHy,  in  order  that 
the  whole  body  of  them  may  ji'o  into  the  proceediuj>s, 
challen};-ed  by  the  Tnited  States. 

In  the  Hritish  arj>ument,  at  pa<>e  (I,  folio  .">(),  this 
statement  is  made: 

(1)  This  correspoiuleiiee  shows  tliat  althoiiy;li  the  seizures 
occnrred  on  the  1st  and  lid  An{!;ust,  ISStl,  and  infonnation 
reitpecthuj  the  same  irm  nreired  hi/  the  I'nited  States  Strretari/ 
of  State  OH  the  Jsth  of  the  same  month,  and  a  request  was 
made  for  ])articulars  by  the  British  (Jovernment  on  tlie  liTtii 
of  September,  no  intimation  as  to  the  cause  of  seizure  or  any 
])articulars  rehiting  thereto  could  l>e  obtained  from  the 
T'nited  States  Government  until  the  12th  of  April,  1887,  and 
not  before  the  11th  (.i  .<uly,  1887,  did  that  Government  com- 
municate the  precise  nature  of  the  proceedings. 


'i 


INTR()l»i;t'TOKY    HTATEMENT. 


It  is  to  l)»'  oliscrvcd,  in  (•oniicctioii  witli  tlic  stutc- 
inciit  itiiliri/.cii,  tlnit  tlic  iin|)ii('iiti*iii  is  tliiit  Mr.  nnyanl, 
tlu'  Aiiiciiciiii  SccrctJiry  nf  Stilt*-,  wliilc  linviii;:'  the 
int'oriiiiitit»ii  trnin  Aiijiiist  IS,  issd,  wi'Mtc  to  tin-  Uritisji 
iiiiil);iss!iiliii- on  Xitvciiilicr  12,  iSKti,  that  he  IukI  not 
rt'Cfivcil  it,  iiiiil  tliat  he  witiilu-hl  the  int'oniiation, 
ah't-adv  uccixs  ami  inoiitiis  in  his  |ioss»'ssi(»ii,  alter  he 
hail  received  the  iiutes  of  iii(|iiiiy  tVoni  the  hritisli 
ambassador  tit'  Septeiidter  27,  1SS6,  and  ()ftoiter  21, 
1S8(!,  askinji'  lor  it. 

It  is  siiliniitted  that  the  statement  (pioted  from  tin; 
arjiinneiit  of  (ireat  Britain  has  iiothin;.:'  \vhat«'ver  to 
rest  upon  ill  any  place  in  the  record  or  out  of  it. 

.Moreover,  it  appears  from  the  testimony  of  witnesses 
on  this  record  that  the  mail  faciliti«'s  between  .MasUa 
and  the  railway  mail  connections  on  the  I'acilic  Coast 
with  Wasliiiiji'ton  were  not  only  very  irre^jfiilar,  but 
that  the  time  was  from  ten  days  to  two  weeks  at  this 
period :  to  that  must  be  added  the  time  across  the  con- 
tinent by  rail  from  the  I'acilic. 

Secretary  liayard  states  that  he  delivered  the  infor- 
mation desired  as  soon  as  he  could  ;>i\«'  accurate  and 
authentic  information. 

This  was  furnished  with  far  more  expedition  than 
is  usual,  as  shown  b\  tliediphmiatic  history  of  nations. 
In  all  the  history  of  (Jreat  Mritain's  foreij:n  relations 
there  is  not  a  case  where  there  was  as  much  expedi- 
tiiin  in  like  circumstances. 

In  the  Fortune  Hav  ca.ses,  referred  to  in  the  Jhitish 
brief,  Mr.  Kvarts  submitted  to  (Ireat  iiritain  the  *daims 
nl  the  I'nited  States,  for  attacks  upon  and  damages  to 
twenty -two  vessels  under  the  American  fiajfjon  Auffust 
!,  1K71>.  lie  receiv«'d  a  reply  from  Great  Hritain  on 
A))ril  H,  \H8(l  (Foreijiii  K'elations,  (Jreat  Hritain, 
1880,  vol.  72,  p.  1277  rt  sn/.) 

In  the  case  of  the  .ship  Jotiis  (an  ocean  shij)  with 
her  carfi'o,  worth  more  than  all  the  jiroperty  of  liriti.sh 


INTKODUCTORY   STATEMENT. 


'i        '■' 


siil»i»Mts  involv«Mi  ill  this  ciist-  tnyctlicr),  vvlu'rcin  tlic 
Hritisli  iiiii|)in'  iit'tiTWiirds  t'oiiinl,  iiii(l*-r  tiu'  Mixftl 
( '(iimiiissiuii  lit"  isri.'J,  tliiit  ii  Hritisli  cruiser  I  smI  •ci/cd 
ji  sliiji  siiiliii^'  iiiidcr  tlic  Aincrinin  H;i<i'.  witliuiit  iiiiy 
priil)iil»lc  ciiiis*'  iiiul  witliitiit  ii  sliiitlow  of  ('X<"iis(',  (lur 
tlicii  Sccrt'tiiry  <»t'  Stjirc,  Kdwjird  Kvcrctt,  in  \XV,i, 
iiddrcsscd  ii  letter  ut"  cnmidjiiiit  to  tlic  Hritlsli  ( Juverii- 
iiieiit,  setting'  forth  the  fiicts  and  invitin;^'  tiie  iiiiniedi- 
iite  iitteiition  of  that  (iovernmeiit  to  tlie  cjise.  Tiiere 
Wiis  no  reply  reeeived  for  three  jind  a  hidf  veiirs,  and 
no  excuse  was  olVereij  for  the  delay.  (Itl.,  vol.  3.'i, 
1SK;-47.  |».  fl.V)  rf  vrf/.) 

Nations  do  not  take  positions  ii|)on  lacts  which 
may  alVect  their  riji'Iits  and  olilijialioiis  without  delili- 
eratioii  and  proper  iiivesti;4ation.  The  presumption 
here  should  he  that  Secretiir\-  MayanI  acted  in  accord- 
ance with  tlu^  usa;:'es  of  nations  and  the  conditions  as 
they  existed,  (it  was  conceded  that  he  so  acted  in 
this  matter  l»y  Sir  Charles  Russell,  now  Lord  Chief 
diistice  of  Kn^laiid,  in  his  ar^iumeiit  before  the  i'aris 
TrilMinal.) 

'I^he  ainl»assa(hir  of  (Jreat  l^ritain  was  resident  at 
Washin^^'toii,  and  outside  of  all  formal  communications 
or  iKifrs  rcflidlcs,  was  in  informal  (•ommimicatioii  with 
Mr.  Hayard. 

Of  such  interviews  there  is,  of  course,  no  evidence; 
hut  there  is  no  intimation  anywhere  on  the  |»ait  of 
the  aiiiha.ssador,  or  of  the  British  (}<tverniiieiit,  that 
Mr.  Hayard  had  withheld  iiiformatictn,  or  had  not 
furnished  it  with  such  expeilitioii  as  was  in  accord- 
ance with  iisaji'e  and  the  circumstances. 

On  paj^e  20,  folio  20,  we  find  this  statement: 

(2)  For  iiianyypar.s  the  ITnitcrt  States  have  disputed  tlieir 
liability,  sliittin|j:  their  ground  from  time  to  time  from  one 
untenable  position  to  another  equally  up.sonnd,  during  the 
whole  of  which  jteriod  they  have  failed  to  make  any  repara- 
tion wliatever  to  the  parties  who  were  the  dire*  t  sufferers 
from  their  acts  and  pretensions. 


* 


mm- 


VV^. 


INTUOI HTCTOKY   STATEMENT. 


And  iit  pjiju'c  10,  toliits  1()-"J(»,  we   find  tin's  stiitc 
nicnt  iis  ii  pnMnisc  to  tlu'  nltovc: 

This  correspoiuUMU'c  ((lii)l()iiiiitic)  discloses  the  followiiif; 
positions  iissniiu'd  at  various  times  by  the  authorities  of  tiie 
Inited  States  (IT.  S..  vol.  L',  pp.  I'Gli/.Wd,  ;{!»(>): 

(«)  Tiie  vessels  seized  in  lSS(i  and  ISST  were  seized  and 
condeinnedonthet-ronnd  that  l>erin;jSea  \vi\i^:im(irrrl<iiisi(iii. 

{!))  DisaxDwinj;  this  yronnd,  the  claim  was  nnide  on  Sep- 
teinl>er  17,  It^'.Ml.  that  tlie  Inited  States  had  exclusive  Juris 
diction  over  1(K»  miles  t'roin  the  coast  line  of  the  United 
States  tei'ritory  in  Herinji  Sea. 

((•)  Snhseciuently  on  the  Mth  .Vpril.  18!M.  the  United  States 
(iovernnient  advanced  a  new  claim  that  they  had  pniperty 
in,  and  a  ri^'ht  of  protection  over,  liir  seals. 

Tilt'  citations  iiixcn  do  not.  of  coui'sc,  sustain  this 
ini|intation. 

.\n  intimation  to  tlu'  same  clVcct,  tiioiijili  in  tar  less 
ohjcftionahlc  form,  was  mailc  iicforc  tin'  i'aris  Tri- 
hniial:  ami  uc  coiitciit  onrsclvcs  iiy  rcfcrriiii;'  to  tlu- 
trcatnu'in  of  that  intimation  hy  the  I'minciit  coiinscl 
who  there  rcim'scntol  the  I'liitcd  States,  at  pau'c  2" 
ct  SI  I/,  of  xdlnme  It  of  the  .\meriean  )»rint  of  the  |)ro- 
ceediiiiis  of  that    IVilninal. 

( )n  the  latter  part  of  the  first  |tMraj>Tiii)h  of  (2)  ahove 
(|iioted  we  make  this  connnent: 

Xotwithstandini:'  the  statement  iinpliedlv  to  the 
contrarv  there  maile,  and  exjiressly  made  at  pao-e  If, 
folio  1(1  (  "  I'articnlars  of  claims  had  been  fornndated 
and  presented  to  the  I  Hi  ted  States  (iovernnient"),  and 
at  pa<i('  If),  folio  3(>  ("I'he  claiius  i.etiialiy  snhniitted 
l»v  (Jreat  Hritain  referred  to  in  the  notes  xerhaK's"), 
(Jreat  Hritain,  in  distinct  departtn-e  from  her  own 
jH'ccodents  and  from  the  rules  of  international  law  in 
such  cases,  wli«'re  one  nation  seeks  iiidenmitv  from 
iinotlier  for  iiijiirv  to  persons  or  property,  never  eaiised 
the  claims  t<»l)e  audited  or  fornmlated  in  any  maimer 
for  ]treseiitatio!i  to  the  I'nited  States,  and  never  pre- 
sented them. 

():'  the  contrary  on  April  IS,  l8S8,as  appears  by  the 


INTRODUCTORY  STATEMENT. 


^i 


li 


WiM 


trt'sj);isscr,  or  iis  "iiii  insult 


iciHnd,  1 1 tT  Majesty's  aiultassador  torniiilly  »'oiuiiuiiii- 
(liiU'tl  to  Mr.  Iiii\  Jinl  tlu'  tollowiii^'  (Kcc,  p.  Gll): 

Ilor  Miijesty's  (iovenmuMit  have  just  receivctl  tlie  piuticii- 
lai's  of  Mit>  claims  tor  coiiipciisation  on  account  of  Hritish 
scalers  seized  and  warned  oil'  by  tlie  rnited  States  autliori- 
tics  in  lierinj;  Sea. 

,1  just  assfSKnicnl  of  llicsc  rhiinis  iiiijitdrs  to  tluni  ili(liciilt 
iritlioiil  invixtiijolinn  atiil  ririjivtitiiin ;  and  tliey  therefore 
wish  to  ascertain  whether  the  Inited  States  (iovernnient 
would  be  disposed  to  a^^ice  to  a  nuxed  coniinission,  etc. 

'I'lic  cliiiiiis  were  not  iircsciitcfl  in  iiny  I'orin  until 
tlic  Paris  'rriltunal  canic  toiictlicr  in  is;','!;  and  in 
the  nieantinic  ncLiotiatiitns  were  pcudin"^'  Ix-twccn  tlie 
( !(i\  cniinents  wlurciii  tlie  position  ol"  tlic  I'liitt'd 
States,  elaiiniiiii'  jurisdiction  to  make  tin-  seizuics  in 
(|iU'stion,  and  denying  ilieir  lialtility  lor  makiiiii' 
tiicin,  was  not  cliallciiucd  Ity  (Jreat  Itritain  as  tlie 
attitude  ot'  a  "wanton" 
to  the  tla;;-  ot"  (Jreat  Hritain." 

On  tlie  contrary,  witlioui  f'ollowiiii;-  tlic  practice  in 
respect  ot"  sucli  allei^'cd  injuries,  wliicli  liad  alwaxs 
ohtained  wlicre  riu'lit  was  asserted  hv  one  and  wroii;;' 
ati'ainst  it  h\  tlie  clainiini;-  nation,  of  auditiiii:-  and 
|»resentinji-  tlie  claims,  ilic  <piestioii  ol'  ri^lit  and 
wroiiji'  was  considered  so  doiilittul  tliat  (ireat  Uritain 
conceded  that  conipensatioii  to  l^ritisli  siilijects  should 
remain  in  alieyance  peiidiiiji'  the  settlement  l»y  inter- 
national arhitratioii  of  the  ipiestioii  ot  the  juris- 
diction ot"  the  rnitt'd  States  to  protect  the  seals  in 
Herii  .■  Sea. 

'I'he  ireat  (piestion  was  the  ([uestioii  of  that  juris- 
dictio,,;  and  so,  in  Article  VIII  ot"  the  treaty  of  ISII-J, 
cr<  atin;^-  the  I'aris  'rriliuiial,  tiie  question  of  the  lia- 
hility  of  the  I'nited  States  to  make  compensation  tor 
III*'  sel^'iures  was  treated  in  terms  as  "suliordiuate," 
which  liotli  countries  were  solicitous  "should  not  in- 
terrupt or  lon;>-er  delay  the  sul)iiiissioii  and  determi- 
nation of  the  main  (|Uestioiis." 


i 


|.  .:. 


i|i^iiLuiji|in3npw 


8  INTBODUCTORV   STATEMENT. 

It  is  subuiitti'd,  tliert'torc,  that  tlioro  is  no  WiiiTiinl 
for  the  charji'e  tliat  the  rnited  States  liave  tiuhnl  in 
any  duty  uj)  to  this  time;  or  that  their  honor  or  j>-ood 
faith  ran  be  inipujined  from  any  standpoint,  wlien 
they  have  so  far  "faile<l  to  niak*'  any  reparation  to 
(Jreat  Hritain"  on  aeeonnt  '"of  injuries  sustained  l)v 
l)ersons  in  whose  belialf  (lireat  liritain  is  entitled  to 
claim  eom]tensation." 

I'p  to  this  time  neither  (Jreat  Britain  nor  anyone 
has  been  al>le  to  ascertain  what  these  claims  are,  or 
whether  they  arise  from  injuries  si;st;  in  1  1)\-  such 
"|)ersoiis."  rnli(|uidated  and  u'la^'-r;;'  c  '  as  they 
have  lie<'ii,  the  present  conveiitioi!  '  .cl.^  , .  oynizes 
that  no  lialtility  accrued  imtil  ti.e  licci^ion  of  the 
Paris  Ti-ibunal,  for  such  "laims  are  distinctlv  delined 
in  Article  1,  as  those  "ai'isin^-  by  vii'tue  of  the  treatv 
aforesaid,  tin-  award,  and  the  iindin^s  of  the  said 
'i'ribunal  of  Arbitration"  (at  I'aris). 

At  paii'e  20  of  the  Hritish  arj^ument,  folio  "),  is  the 
followiuji': 

(.'{)  Tlicv  (tlicactsof  tlic  riiitcd  States  in  sciziiifj' vessels  in 
lierinjj;  Sea)  wuistitiitfil  an  iiiKiilt  to  the  Jht<j  i>f  Ureal  lUitaiti, 
rcpiiiti'd from  lime  to  time.  accompaniiMl  by  the  sci/ure  and 
conliscatioii  ol'  valuable  i)roi»erty.  in  the  lace  of  continued 
protests,  ((«(/  crcii  ul'tir  tin' nets  ami  (lerlarnlinnx  of  llic  I'liittil 
tStattx  ilonrnment  had  (jircn  un  iiiiplird  anxi  <iiice  to  the  roii- 
trary. 

in  other  places  in  the  opposiu<:'  ai'jiument  conuien- 
salion  is  claimed  froui  the  riiite(l  States  luidi'i  il<" 
convention  and  before  this  ( "onunissiou  for  «i  =  ai 
Britain  "in  her  own  behalf,"  distinjiuisliin^-  this  as  a 
national  claim  in  a  diti'erent  sense  from  thosi  Miade 
by  her  in  behalf  of  "))ersons"  within  her  protection. 
(Fol.  10,  p.  IS;  f(»l.  50,  p.  13.) 

'i'he  coimsel  of  the  I'nited  States  have  but  two 
observations  to  make  on  the  above-cpioted  paragraph 
in  connection  with  the  context: 


|i  'Si 


INTBODICTOKY    STATEMENT. 

((()  III  iill  till'  liistorv  of  tliiit  jiTCiit  iiiitioii  tlic  fiji<>- 
of  (Jrt'jit  Hiitiiiii,  r«'s|K'cttM|  tlinnijilioiit  the  world  for 
till'  powtT  ht'liiiid  it,  and  iiiori'  respected  liy  stnuiji- 
nations  of  all  civilizations  for  what  it  represents 
l)esi<les  the  force  of  arms,  has  never  lieeii  insulted 
with  inipiinity:  and  never  before  in  lier  history  has 
it  heeii  sii^iji'ested  liy  her,  iiiiich  less  to  her,  that  the 
aiiien<ls  for  such  an  insult  could  he  arbitrated  or 
referrefl,  or  that  a  money  compensation  for  the  act, 
assessed  by  referees  of  whatever  di<>'nity,  would  lie 
received  as  satisfaction. 

The  irrelevancy  of  the  statement  in  its  beariiiji'  on 
the  (piestion  of  dama^i'es  will  l»e  considered  later  oi;. 

(h)  'i'he  charjic  that  the  I'liiteil  States  had  been 
jiuilty  of  a  breach  of  faith  that  is  here  madi'  was 
lU'ver  intimated  in  the  di|)lomatic  coiTes|)ondence 
Ix'tweeii  the  (lovernments.  I'roiiiptly  on  learninji- 
that  a  niisunderstandiiiji'  was  clainu'd  oil  the  part  of 
lier  Majestv's  repii'seiitativt'  on  the  subject  of  sei- 
zures, Mr.  liayard,  on  Aiij;ust  UJ,  1S87,  correctecl 
the  inisiniderstan<lin<i',  if  there  was  one,  and  made 
this  statement  in  that  letter,  which  is  fully  justified 
l)v  an  examination  of  the  correspondence  (Wee.,  81  ): 

I  can  discover  no  {•rouiid  wliatcviT  for  llio  assninptioii  by 
Ilcr  MiiJ«'st,v',s  (lovcriinu'iit  tliiit  it  (his  letter  of  l'"«'l)niar.v  .'>, 
ISS7)  coiitained  assurances  (i|uotin}>'  troni  tlie  letter  of  the 
Itiilisii  ambassador)  "tliat  iieiniin};  tlie  coiKliision  of  ilis- 
cnssioiis  between  tin'  two  (loveriiinents  on  {•eneral  (inestioiis 
involved,  no  t'nrtln'r  seizures  would  be  made  by  order  <it'  the 
United  States  (Government.'' 

On  pa<i'e  1,  folio  ">,  appears  this  statement: 

(4)  (Intil  the  year  188(1  the  luited  States  (loveinnient  by 
no  positive  act  soufiht  to  exercise  any  f.xclnsive  Jurisdiction 
over  the  waters  of  ISeiiiif;  Sea  beyond  the  usual  territorial 
limit;  nor  did  they  by  any  active  interference  intimate  to 
<ireat  Hritain  or  to  other  foreign  powers  their  intention  to 
chiiin  special  (U' e.xcliisive  autlunity  to  prevent  the  capture 
of  fur  seals  in  Heiinj;  Sea  outside  of  such  limit. 

n  s L' 


nfff™T 


W[ 


^"i'i'J.i-^lt 


10 


INTRODUCTORY    STATEMENT. 


Tlic  ivt'crcnc*-  to  tin-  rcronl  oupositc  this  paiiifiTiipli 
does  iKtt  siistiiiii  it.  Tlu-  ivterciu'i-  is  to  tlio  stati'iiii'iit 
of  tlu;  liritisli  cjisc  hct'on'  the  I'ari.s  'IVilninal,  and  is 
entitled,  "<  (utiine  ot'  .\rf;uinent." 

It  a|)]K'ars  l»y  this  rerord,  on  the  evidence  pnt  in 
bv  Her  .Majesty's  Cioverinneiit,  that  tlie  first  ship  to 
enuaji'e  in  pehi^^ic  sealini:'  "as  an  American  vessel 
that  went  int<»  the  sea  in  1SS4.  It  was  not  claimed 
before  the  Paris  Tribinial  that  any  Hritish  ship  was 
in  the  sea  Ix-fore  that  year. 

It  is  not  pretende<l  l»v  (ireat  Britain  that  there  was 
anv  assertion  bv  that  nation  or  her  subjects  of  the 
riiiht  to  take  seals  in  Merinji'  Sea,  as  contested  l»v 
the  I'liited  States,  liefore   188."):   and   it   appears  that 


tl 


le  assertion  of  the  riuht  bv  (Jreat  liritain,  or  l)v  her 


snlijects.  was  not  bron;^lit  to  the  attention  of  the  United 
States  (Jovernment  or  its  oHicers  until  after  the  close 


.f  tl 


le  seasi 


>n  of   l.SS.">. 


Sir  ( 'harles  lius.-ell.  in  his  arjiument  at  Paris,  (piotes 
the  statement  of  Secretar\'  iJlaine  as  follows,  from 
his  dispatch  on  the  >nliject  of  P>ritish  sealinj;',  date(l 
danuai-\-  '_'■_'.  lS!t().  where  he  says: 

Whence  did  tlic  slii|>s  of  Canada  derive  tlie  right  to  do  in 
ISSfi  tiiat  whicii  they  had  retrained  from  doing  for  more  than 
ninety  years  if 

In  all  fairness  to  both  nations,  after  all  issues  of  fact 


lave    l»een 


investiiiJited   and    resolved   bv   the    Par 


IS 


Tribunal,  it  >liould  lie  stated  that  t'rom  the  date  ot 
ac(|uirement  of  .\  la  ska  in  isilT  until,  bv  reason  (»f  what 
took  place,  in  the  \far  1  ssf)  the  (piestion  of  jielaoic 
sealinji'  or  the  jurisdiction  of  thi-  United  Slates  in  the 


nrenuses  w j 


Sim 


i  not  assertel  auainst  ( Jreat  Hritain.for  tli 


pK'  reason  that  the  i,.f'er  (iovfrnment  or  its  sub- 
jects had  not  challen;ied  that  jurisdiction  or  interfered 


thtl 


wi 
lisl 
dicti 


le  excUisive  c( 


•ntrol  bv  the  United  States  of  seal 


IIU' 


as  clauuei 


I  in  I 


ierin;;-  Sea,  at  Pan 


'11 


le  |uris- 


on  was  asserteil  as  soo 


n  as  sidistantiallv  infriuijcd. 


INTKODL'CTOKY    STATEMENT. 

()>vin«i-  to  the  <>T!ivity  Jtiid  iiiii^i'iiitude  of  wliiit  is 
cuIUmI  in  llu' treaty  tin-  "Miiin  Coiitiovcrsy"  hetwceii 
the  Tiiitetl  States  anil  (Jreat  Uritaiu,  the  iutenia- 
tioiial  (|uestioii  of  juiisdictioii,  the  chiiins  involved 
for  losses  to  British  snlijecls  have  Iteen  ^iven  an 
iiii|M»rtan('e  out  of  all  projtortion  to  their  si^iiiHcanee. 
Lifted  into  view  by  the  supreme  fejiture  of  the  con- 
troversv,  a  few  small  lishin;^-  hoats  have  heen  the 
siih'u'et  of  |trolon;i('d  neji'otiation  itelween  two  <>Teat 
nations,  resultin<>'  in  the  or<>anization  of  a  llijih  Conrt, 
composed  of  jurists  of  distinguished  position  and 
learninii',  to  make  an  assessment  of  values  and  pass 
upon  (piestions.  involvin<i',  in  the  case  itself,  only 
these  as  sni))ects. 

With  the  i;reat  (piestion  taken  from  under  them, 
dis|Mtsed  of  at  Paris,  and  out  of  view,  it  will  seem  to 
whomsocNcr  this  record  comes,  and  who  masters  it, 
that  the  few  claims  and  their  sul>je<'ts,  which  can  he 
considered  here  at  all,  liave  heen  ^^iven  a  most  incon- 
gruous dignity :  and.  too.  from  the  tMitside  standpoint, 
it  has  seemed  that  ureat  tiects  have  heen  dri\t'n  from 
the  sea  1)V  the  IJniteil  States  from  \ car  to  \ car.  'This 
is  true,  hut  tlie\  have  not  l)een  the  fleets  of  (ireat 
Ihitain.  Tlicx'  lia\c  heen  the  \  essels  of  citizens  of 
the  Initeil  States,  in  the  proportion  of  loss  to  that 
of  the  sid)jects  of  (Jreat  Ih'itain  as  ;i  thousand  to  oiu'. 

("onfusinji'  this  distinction,  the  |iuhlic  mind  has 
a>sumed  that  all  the  results  of  the  action  of  the  I'nited 
States  in  lierinji'  Sea  (action  suiistantially  in  respect 
of  its  own  shippin;^'  and  its  own  citizens)  fell  upon 
Ih'itish  subjects.  This  also  has  jiiven  a  factitious 
diii'uity  to  these  tdaims.  When  from  the  claims 
presented  here  there  are  thrown  out  those  ur^cd 
unlawfullv  because  of  their  actual  ownership  by 
American  citizens,  who  can  not  be  represented  by 
(Jreal  Uritain  under  this  convention,  the  residuum  of 
actual  Hritish  losses  will  l)e  foinid  small  indeed. 


11 


"Pi 


^m 


■'|-',H"i(iH»P!ll|Pfl!I. 


12  SIMMARY   OF   LEADINO   POSITIONS   IN    REPLY. 

It  is  (thvious,  li(iv>  t'ver,  tliat  tlu'  siiiiilliu'ss  of  the 
iiiiiouiit  involvi'd  ill  nowise  (h'tnii-ts  tVoiii  the  iiiijior- 
taiiee  of  the  iiiternatioiial  (juestioiis. 


A  sense  ot"  tlieir  professional  (hity  to  the;  Coiiuuis- 
sioiiers,  who  have  consented  to  a(kl  to  the  exacting 
responsihihties  of  the  lii<>h  jdaces  they  iiohl  in  the 
jiuliciarv  of  tiieir  respective  coniitries,  tliat  of  niaster- 
iiiji'  and  disposing-  of  the  international  controversy 
einl»race(l  in  this  enorinoiis  record  and  its  adjuncts, 
has  impelled  the  counsel  for  the  I'liited  States  to 
endeavor  to  aid  them  with  ;i'l  that  conscientious 
research  and  analvsis  on  the  l,iw  and  the  facts  can 
atl'ord. 

If,  in  the  result  of  this  purpose,  it  should  seem 
tliat  any  excuse  is  needeil  for  the  space  taken  in  j^atli- 
erin<>'  and  presentinji-  the  evidence  under  the  several 
heads,  with  intellijiihle  and  orderly  references,  that 
excuse  mav  he  at  once  found  l)y  coinj)arinji-  with  the 
record,  in  any  one  instance,  the  statements  under  any 
caption  whatever,  in  the  British  argument,  treatinjjc  of 
the  facts. 


SUMMARY  OF  THE  POSITIONS  OF  THE  UNITED  STATES 
IN  REPLY. 

At  this  place  we  siilmiit  lirief  synopses  or  head- 
notes  of  the  leadinj;-  positions  taken  in  the  ar<iunieut 
of  the  United  States,  hereafter  presented  at  lenjith,  in 
repl\-  to  the  juridical  [lositions  of  (Jreat  liritain  on 
like  sul)jects. 

I. 

International  h\\  furnishes  the  standard  for  the 
inter}»retation  of  treaties  and  conventions  and  is  the 
law  of  this  ( 'ommission. 


SUMMAKV    OF    l.KADINti    POSITIONS    IN    HKPLY. 


13 


Tlio  s('(>|M'  tit"  tlic  coiivciitioii  in  this  ciisc  is  dctinefl 
iiiul  limitt'<l  l)y  the  liiiij'UJi'ic  (»t  the  (•((iivcntioii  itself 
Mild  the  (lociiiiu'iits,  wliicii,  l)y  its  terms,  are  niiiiie  u 
|»!irt  of  it  l)y  express  reference  iiiid  ideiitificiition  in 
its  l)odv.  'I'lie  interuiititiiial  law  of  iiiteritretiition 
aiipliciiiile  liere  neither  re*|nires  nor  jierniits  any  refer- 
ence to  extraneous  matter. 

Tlie  chiims  referred  to  tliis  Commission  are  thus 
tinchaii^eal)ly  pointed  out  and  (h'tinitely  descrilied  in 
the  couveiitiou,  except  oiilv  as  to  tlie  amount  o'' each 
claim.  'I'he  names  of  the  "persons"  for  whom,  und<'r 
ArticU'  I,  (Jreat  Britain  can  chiiin  compensation  liefore 
this  ( 'oiiimissioii  are  as  unchanjicalily  pointed  out  l»y 
the  convention,  except  only  as  to  them,  so  named  as 
claimants  l)y  the  convention,  the  I'nited  States  are 
permitteil,  aial  that  nation  alone  is  permitted,  by  a 
specilic  provision,  to  iuipiire  into  their  identity,  in 
deteiise,  as  the  actual  owners  of  the  vessels  sei/.ed. 


II. 


.\s  to  compensation,  the  rnitetl  States  hold  to  the 
same  attitude  now  thai  was  announced  hy  their  coun- 
sel hefore  the  Paris  'rrihunal  and  has  Iteeii  consistently 
maintained  hefore  this  lli<ih  ( 'ommission, namely,  that 
their  lial»ility  liavin;^'  been  lixed,  the  (Jovernmeiit  de- 
sires to  pav  compensation  to  (Jreat  Uritain  on  account 
of  all  persons  "in  whose  Itehalf  (Jreat  liritain  is  en- 
titleil  to  claim  compensation  from  the  I'nited  States," 
and  to  pay  that  compensation  at  the  earliest  time  when 
the  proper  amount  can  he  ascertained. 

.Moreover,  the  I'liited  States  want  no  compromise 
on  the  amount  of  compensatiiin  on  values,  and  the 
amount  of  the  injury  inflicted  by  them  fi»r  which  they 
are  responsible  under  the  Paris  award.  i'liey  di'pre- 
cate  any  such  method  of  arrivinji'  at  an  award,  espe- 
cially under  this  convention,  where  tlu'  claim  of  each 
owner  is  to  be  found  separately. 


I  i; 


«^ 


'JU  !'l!HWifli»|«' 


14 


SUMMARY    OF    LKADING    POSITIONS    IN    RKl'LY. 


It  ciiii  not  l)ut  oi'ciir  to  nnyoiu',  however,  when  the 
iniiounts  iur  eoiiipared  tor  the  same  chiinis  math'  up 
for  the  l*aris  'I'rihunal  with  those  presented  at  the  hear- 
iufi'  in  \  ictoria,  and  ajiaiu  when  both  are  compared 
with  the  ehiims  now  jtresented  in  the  arjiinuent,  that 
tile  ehiimants  (h>  not  sliare  these  views  as  to  compro- 
mise. 

The  chan<i('  of  front  at  \'ictoria  on  the  measure  oi' 
recovery,  tiie  evi(h'nce  of  the  padiUnji-,  duplicating;', 
and  doid)linii'  of  claims,  the  «'\perience  of  other  com- 
missions and  trihunals  with  like  claimants,  which  are 
hereafter  referreil  to,  tend  to  demonstrate  that  the 
amounts  are  presented  at  such  preposterous  lii^'ures 
in  ordei' — if  they  are  taken  as  a  basis  of  calculation 
at  all — 1  hat  their  reduction  of  half  or  more  would  still 
;;ive  a  result  out  of  all  proportion  to  the  truth. 


.\  foreijiiicr  peruiiuientty  domicih'd  iu  the  I'nited 
States  like  the  claiiiuint  ('oopcr.  altlioiijLi'h  unnatural- 
ized, owes  (hu'luL;-  the  <luration  of  his  domicile  allepi- 
aiice  to  their  ( io\ crnmciU,  ol)e(lifiice  to  tiieir  munici- 
pal la\\>,  and  opecially  to  their  national  assertion  ol 
uliat  is  \ariously  termed  dominion,  no\ creiLiiitx',  or 
jurisdiction. 

.\(iii  ciiiisldt  such  a  person  ma\'  owe  original  allcal- 
aiu'c  to  (ireat  ih'itain.  and  //(*//  cuiisldt  he  puts  hi> 
slii))s  under  a  Ih-itisli  lia^'  and  a  Hritish  re^istrv,  he  is 
still  a  resident  of  the  I'nited  States,  and  so  amenable 
to  their  law-  and  absolutely  bound  b\  their'  assertion 
of  so\crei;inty. 

\\  liate\cr  ipiestions  there  may  be  as  to  violations 
of  national  iliunity,  ol' the  Ha;;-,  and  the  shi|)  (wholK 
(piestions  of  diii'uity  lu'tweeii  nations),  in  such  ca.se 
he  is  not  a  person  who  can  enter  an\-  uunucipal  court, 
nuicli  less  an  international  coinuiissiou  on  claims,  and 


SUM^rABY    OK    LKADINO    POSITIONS    IN    UKPLY. 


If) 


TV 


A  cili/.cn  ot"  the  I'liitrd  Stiitt's,  wlii'n'vcr  iTsi<U'iit 
or  (loinicilcd,  until  lie  Itccniiu's  iiiitiiralizcd  in  (Jrcnt 
liritiiin,  is  still  hound  to  liis  ori<iinid  idlciiinncc  to  tlii' 
I'nitccl  States  in  ivspcot  of — 

(^()  Tlicir  nssi'i-tion  of  jurisdiction  and  sovcrcij^nty 
over  tcrritorv  or  iiropcrty. 

{It)  All  municipal  laws  liavinji  an  exterritorial  eifect. 


'f  ■:      M 


'm 


set  Up  that  he  is  a  person  "in  whose  helialf  (Ireat 
Hritain  is  entitled  to  (daiin  coni(K'nsation  fntin  the 
I'nited  States"  for  injuries  which  he  has  suffered  in 
connnon  with  other  civil  citizens  of  the  I'nited  States, 
no  more  ameiiahle  to  their  laws,  for  doin^^'  the  same 
acts  ajiainst  the  policy  of  the  soverei^iiity  and  the 
laws  of  their  connnon  (Jovernment,  for  which  thev 
have  suti'ered. 

Aside  from  (piestions  havinji'  to  do  with  llie  iiivio- 
lahility  of  the  tlai^'  and  of  the  deck,  where,  on  the 
lii^h  seas,  sovereij^iitv  is  said  to  he  present  as  upon  its 
territory  on  land,  there  is  no  douht  hv  the  authorities 
that  this  assertion  in  its  extreniest  form  is  one  entirely 
of  national  dijiiiity,  in  respect  of  the  soverei<:ntv  itself, 
as  distinctly  distinjiuished  from  the  claim  on  account, 
of  the  private  ownerslii|>  of  a  ship  made  hy  the 
same  nation,  in  respect  of  a  suhject  or  citizen,  in  net 
court  hefore  has  it  heen  claimed  that  the  innnunitv 
(if  the  tla<:'  and  of  tlu'  di'ck  from  molestation  l)y 
other  nations  on  the  liiiih  seas  carried  with  it  in 
courts  of  admiralty  an,  wlu-re,  or  in  anv  international 
court  ever  held,  anv  exclusive  jiresnmption  of  pri- 
vate ownership. 

On  the  conti'ary,  in  the  courts  of  Knjiland  as  ro 
forei;^n  ships,  and  in  the  courts  of  every  civilized 
nation,  passinji'  the  <piestion  of  national  dijiiiity,  it  is 
(•on<dusively  ludd  that  iiiilioiidli/if  Jiillmrs  i)iniri\^lni>. 


Mi 


T^ 


16 


SUMMARY   or    I.EADINO    POSITIONS    IN    KEl'LY. 


IIIII«-    III       >1  ill  . 

Tlic  iiii\iiitt'iiiiiic('  ot'  tlic  ri;ilits  of  (loinicile  in  tlu'  Iiis- 
torv  of  iiitcniJitioiiiil  law,  iis  \\  ill  lie  st'oii,  shows — 

(1)   Fn'«|ii('iit  iisscrtioiis  of   ]>rot('('tioii   in  tinuf  of 

])i'iu'('  iiji'Jiinst   iill   other  niitions  rjir/if   tlic  im/ioii  of 

iirif/iiKtl  (illcii'iitiKc :   iiiid   in    th«'  ii|ii»lical»lc    principles 

liiid    down    l»v    the    iinthorities    this    exception    will 
..1 ,...  iw.  f..,.',.,i  :..  »,....>,. 


his  country.  In  other  words,  to  he  protected  hy  the 
Government  of  the  nentral  in  such  conilitions,  it  must 
a]>pear  that  he  has  maintained  the  status  of  the  (Jov- 
ernment  of  his  domicile  as  to  neutralitw 

\\\  these  well-settleil  doctrines  of  international  law, 
1)\-  the  treatv  of  \Vashini;ton,  the  Paris  award,  and 
this  convention,  citizens  of  the  I'nited  States,  wherever 
domiciled  or  commoi'ant.  are  not  jiersoiis  "in  whose 
hehalf  (ireat  Uritain  is  entitled  to  claim  compensation 
from  the  I'nited  States." 

V. 

'{'he  law  of  "compensation"  in  cases  of  this  kind  is 
nstitiilid  ill  'iiil'unim. 

\\\  the  Kn;illsh  and  American  law,  and  ahove  all, 
1)V  what  nmst  he  t^ken  in  this  trihimal  as  its  authority 
in   international   law.  in  cases  of  precise  analo;^y  to 


1*9 


SUMMAUY    OK    LEAKING    I'OSITKJNS    IN    REPLY. 

tills,  |irosjH'ctiv('  |)n>Htrt  and  loss  of  cah'Ii  ciiii  not  Ik* 
iillowi'd  to  (Jrcnt  Hritain  l»y  tliis  ( 'oniniissioii: 

In  any  case  (a)  wlicrc  tlic  I'nitcd  States  (ijtfiro- 
lir'nitril  tlic  vessel  l»y  sei/.nre,  or  l)y  nlthnate  proceed- 
infi's  relalinj''  Itaek  to  tlie  seiznre;  or  (h)  in  any  case 
of  selziwe  where  the  I'nited  States  ordered  a  release, 
if  the  release  was  not  aeeepted,  or  if  the  facts  disclosed 
Mil  intention  on  the  part  of  the  claimants  1o  al)andon 
the  property  to  the  United  States  l)ef<ire  the  follow- 
iiiji'  season. 

The  theory  and  presuin|»tion  innst  he  applied  in  all 
such  cases  that  the  claimants  had  the  means  and  could 
iiave  su|iplied  the  place  of  the  pntperty  seized  at  the 
time  of  seizure.  In  other  words,  the  value  of  the 
j)roperty  seized  at  the  time  of  seizure  is  the  only 
measure  of  compensation. 

In  the  ca.se  of  Warniniis  ma<le  l»y  the  I'nited  States 
(lovernment,  and  actual  (h-partnre  from  the  sea  he- 
cause  of  them,  a  lil)eral  allowance  must  he  made  in 
the  natiu'e  of  the  charter  value  for  ihe  halance  of  the 
sealiiiji'  season  in  Heriii^'  Sea  only.  The  rules  a]iplv- 
iii<i-  here  are  in  principle  like  those  of  demurra<i'e,  or 
like  those  ajiplyinj;'  in  cases  of  partiid  loss.  Practi- 
cally, however,  there  are  hut  two  cases  where  the 
facts  sustain  any  considerahle  claim  as  resultinji'  from 
Warniiifis. 

VI. 

Claims  for  national  injuries,  distin<iuislied  from 
national  claims  made  in  hehalf  of  subjects  or  citizen.s, 
viz,  such  as  raay  arise  from  acts  in  derogation  of  the 
iiiviolal)i!ity  of  the  Haji",  the  dij;nitv  of  the  sovereifiii, 
the  respect  due  to  the  jurisdiction  of  the  soverei<>n, 
and  the  like,  committed  on  the  liijih  seas,  or  n;  that 
sovereifi'ii's  territory,  are  not  before  this  Conijui'^  ion. 
I'lider  international  law  and  by  international  prece- 
dent no  nation  has  vet  claimed  to  recover  damajjes 

B  s 3 


17 


ll'll 


ilH!|-:»i'l"»W 


f 


mm 


IS  SiUMMAUV    OK    I.EAOINO    POSITIONS    IN    KK.FI.Y. 

for  such  arts,  fur  dlsfrihutioii  111110111;  cliiimaiits,  imr  Ims 
aii\'  iiiitioii  ever  rcftoTcil  sucli  (questions  to  iirl»itniti(»ii 
or  cuiiiiiiissidiit'rs  for  ii  (liiiiiii^t's  jisscssincnt.  More- 
over, cliiiiiis  for  "smart  iiioiicy"  or  for  satisfaction 
of  natiniial  all'roiits,  if  aiiv  occiirrt'd,  arc  not  claims 
of  •'jtcrsuiis"  within  Article  I  of  this  convention,  "in 
whose  hehalf  (ireat  ISritaiii  is  entitled  to  claim  com- 
)>ensation  from  the  I'nited  States.'' 

VII. 

'There  is  no  warrant  in  international  law  for  the  al- 
lowance of  |»iinitorv  or  vindictive  damaj^cs  as  hetweeii 
nation  and  nation.  There  is  noantlairitative  jiidiiineiit 
in  the  courts  of  either  coinitr\  which  would  authorize 
a  lindin;;'  that  the  rnitetl  States  on  the  facts  in  this 
record  liaxc  lieeii  fiiiilty  of  "  wniton  injury,"  l»ad 
motive,  or  malice,  and  tlie  aut'  ies  cited  in  the 
British  arLiiimeiit  under  these  h  re  not  in  iioiiit. 

VIII. 

The  claims  that  are  ]iresented,  which  can  lie  heard 
w  itliin  the  terms  of  the  coincntioii,  for  the  most  part, 
ha\<'  lieeii  so  lii-ossK  exauLicrateil  that  they  are  |>re- 
posteroiis  and  exiortioiiate,  and  wherexer  such  claims 
liave  lieeii  made  willtiilly  or  corriiptly  extravagant  the 
«daimants  are  entitle(l  to  the  lowest  estimate  of  com- 
pensation fonnd  within  the  covers  of  the  record. 

IX. 

1?\'  the  rules  of  the  common  law  of  the  two  countries 
and  of  international  hiw,  interest,  as  claimed,  can  not 
be  alloweil  in  the  class  of  cases  presented  to  this 
Trilmnil. 


hecaiise  (a)  the\ 
(ireat  Hritain  ii 
adjustment  of  at 
expressly  excIlK 
its  reference  to 
emiiraced  and  n 
hiinal.  which  aw, 
ceediiiji's  of  the  I 
the  term  "costs  i 
attached  to  the 
or  eiilariic  the  ( 
which  exclude  it 
within  iVrticle  I, 
injuries  sustained 
Hritain  is  eiitith 
the  "additional  ( 
of  the  preamble 


INTERN 
SCOPK    AND    IN'I 

111  this  coiitni 
ered,  wei^ihed,  a 

In  piirsiiinji'  tl 
the  I'nited  State- 
tainment  of  what 
here,  to  resort 
treaties  and  jiid<j 
are  universally  li 
and  jndo-ments  ; 
publicists  iidmif 
Hritain. 


I  I 


THK    INTERNATIONAL   LAW   APrLICAltLE. 


19 


X. 


'riu' costs  in  llic  Siiywjinl  ( "nsc  ctin  not  be  iillowcd, 
licciiiisc  (i()  tlit'N  were  ('(int'csscilK  tlislturscnu'nts  l>y 
(Jrcnt  Hritiiin  incurnMl  by  tliiit  (Jovcnnncnt  in  the 
iHlJMstincnt  (tt'ini  intci-Uiitionjil  dillicully;  (//)  they  iim 
«'X|)r('ssly  cxchidcfl  tVoin  tlic  Convcntinii  in  terms  l»y 
its  rctcrciu't'  to  tin-  cliiinis  rct'crnMl  iis  lliosc  onlv 
cnihrficcd  iiiiil  njinitMJ  in  llic  iiwind  ot'  tlic  I'iU'is  Tn- 
bnuiil.  uliifli  iiw  iiril  cxchidcs  this  cdiiiin,  iis  (h>  the  I'lo- 
(•(•(•( hnji's  of  the  I'aris 'rril)nnid;  (r)  tin- intcrpidiition  of 
the  term  "costs  in  tlic  Siiywjird  (  'msc"  in  the  schcdidc 
jittiiidifd  to  the  convention  c;ni  not  control,  niodit"\', 
or  enhirjic  the  express  provisions  ot'  the  ciHucntion, 
which  exchide  it;  iind  ('/)  it  is  not  ii  chiiin  endtriiced 
within  Artich'  I,  nnnicdy,  •ill  chnnis  on  nccoinit  ot" 
Injniies  sustiiined  l»y  |ieisous  in  whose  hehidt'  (Ireat 
Hritfiin  is  entitleil  to  chiini  conipeiisiition,"  or  one  ot" 
the  "iidditionid  cliiinis  specilied  in  the  iit'tli  pMnii^riiph 
of  the  prejimhle  hereto." 


INTERNATIONAL  LAW  APPLICABLE. 


SCOPK    AND    IXTEKPHKTATION    OK   THK    CONVENTION. 


In  this  controversy  idl  (pi«'stions  must  l»e  consid- 
ered, weighed,  and  decide^l  by  iiiternationid  hiw. 

Ill  pursuinj'-  their  ar^uiueiit  under  this  convention 
the  Tnited  States  do  not  tind  it  necessary,  in  the  ascer- 
tainment of  what  principles  of  that  law  are  applical)Io 
here,  to  resort  to  any  sources  of  authority  except 
treaties  and  jiidjjfments  of  international  courts,  vhich 
are  universally  held  to  be  of  the  most  biiidinj>'  force, 
an<l  judfiiiients  and  opinions  of  eminent  jurists  and 
j)ublicists  admitted  to  be  authoritative  by  (Jreat 
liritaiii. 


ttl 


FfrmiPM 


20 


THE    INTERNATIONAL   LAW   APPLICABLE. 


For  otlit-r  suiirccs  of  lijilit,  troiii  tlic  copidiis  Iciini- 
inii' ot'tlic  world,  n't'crciicc  is  iiiiidc,  witlioiit  iiiiy  tiittirc 
rcciurciicc  to  tliciii,  to  the  collection  of  iiiitlioritics 
foniiii  ill  tlic  cxliiiiistix f  nriLii'inciit  of  .Mr.  ( "iirtcr  Ix-forc 
tile   l';iris  TrilMiiiiil,  .\iiu'ric;iii  print,  vol.  1>,  |)|i.  i-l() 

(I    SI  If. 

\\'liiitcvcr  iiitcniiitioiiiil  liiw  iiuiy  lie  in  its  lirondcst 
dctinilioii.  we  liiivcit  for  ii|»|)liciition  licrc  in  positive 
form.  A\'ii;itc\i'r  it  niii\  itc  in  its  iipplicntioii  to  tlic 
contro\crs\  lictwccn  tlicsc  f\v<>  iiiitioiis,  it  is  not, 
jis  l>nikc  s;iid  of  politics,  "'Tlic  science  of  circinn- 
stiiiices." 

Tile  I'liiled  Stiites  do  not  expect  here  il  dill'erelit 
ii|iplic;ilioii  of  t lie  rules  of  intern;ilioiiiil  liiw  from  tliosc 
\\lii<'li  liiixc  lieeii  Mpplied  to  tlieir  dis;id\  iiiiliiuc  in  tlieir 
p;isl  liiNtorx.  nor  will  tliey  seek  ji  re\ crsjil  of  those 
rnh>  w  iiich  llie\  hii\e  heretolore  siicce>sfiill\  iii\oked 
to  their  iid\  ;iiit;iiie.  iilthoiinh  their  ;i|iplic;itioii  to  the 
proeiit  con!ro\cis\-  would  l>e  iinfii\(ir;il»le  to  them. 

rnK   i..\\v   .M'i'i.viNii  TO  Tin;  claims. 


Ill  delininL:'  whiit  i>  nie;int  i)\  iutern;ilioii;il  l.iw  liv 
colisclil,    I'llillimore  iii\e>  the   I'oljow  ill"  : 

(l)  'I'lic  ((iiiscnl  111'  Millions  is  ('\  jdciict'il  liy  the  ('(intents  of 
ti'ciilics.  wliicli.  iipi'  tliis  as  well  as  lor  nilicr  reasons,  consti 
tiitc  a  most  iin|i(ii'laiit  jiart  nt'  uitcrnalional  law. 

CJi  'I'lic  consent  of  nations  is  also  cn  idciiccd  h\  tlio  ilcci 
sioiis  of  till'  prize  eoiirts  and  tlie  triliiinals  of  international 
law  si|iiii<;-  in  eaeli  coiiiitrv.     (.'^ee  I  I'llillimore.  Xl-I\.|).  Hi, 
and  id.,  p.  .■>■"•.  I.X'll.  willi  \oiy  lull  consideration  of  aiilliori- 
ties  from  Lord  Slowell  down  -ilnjilisli  and  Aiiierieaii.) 

N'attel  (li\  ides  the  iiiillieiitic  sources  (d'  interiKitioiial 
law  into  \  iiliinlarx .  con\ cntioiiiil,  and  cii>tomar\  laws. 
W  liealoii  di\ides  the  \(ihiiit,ir\  law  id  nations  into 
com  (•iiiioii.il  law  and  ciisioinary  law,  the  former  iie- 
iiio-  introdiiceil  l>\  treat\ ,  and  the  latter  hy  nsau'e: 
the    foriiier    l)\    express    consent,   and    the    hitter    li\ 


TIIK    IMKUNATIONAI,    LAW    AIM'MCAHLK. 

tiicit cimsciit  l)('t\\  cell  iiiUioiis.     (Sir  SluTstoii  Uiikcr's 
lliillcck  ini  Iiit('riiiiti'>iiiil   l.iiw.  \'(>I.  1,  oil  (m1.,  |).  .">■_'.) 
Si'c  111..  \'i)l.  I,  |».  51).  citiuii'  ili'cisiiMi  nt'  mixcil  coiu- 
iiiissiitii: 


21 


*' 


(irciilcr  wciijlit  is  Justly  :itrril)iital)lt>  to  tlic  Juil}>;iii<'iits  of 
iilixcil  IrilMinills.  tijtpiiiinril  hji  I  hf  joint  roustut  of  thv  srriTitl 
Stiitis  hclirrni  iciiirh  llu'ii  tire  to  ihciilr,  tliaii  to  those  of 
:i(liiiii'all\  coiii'ts  cstalilisluMl  liy.  iiiul  (li-|ifiiiU-iit  in  sitiiii^ 
inciisiuo  on.  iLc  inslrnctioMs  of  a  sinjilc  State. 


Ill-    iniiiiicntiil 


iiws    o 


t"    u;iiliriiliir    Stilt 


CS     <(lll      (If 


rrtrrrcti  looiihi  ns  iKirtiiiildrdiliiiissini/.s  ol  f/ntnid  jiiiih 
ijilrs   (If/ilii/sl    llir    Slillr    rlidifiln/  lliilll.       (Sir    SliiTslull 


•akcr 


Hal 


iiifck, 


\'..l.  I, 


.) 


The  law   III'  iiatiiiiis   is  ahsoliiti'lx    iiiil(|iriiiiiMit   ol' 
iiiirilial  laws.      {(  )|)iiiiini  nt'  arliitralors,  i';i|uTs  rc- 


iiuiiiiri)ia 


aiiiii:'  ti>  'IVratx   nt    \\  aslii 


ti>ii. 


:i-l()|; 


award,  i<l 


.Villi    IMiilliiii 


'1.) 
ore 


(Int. 


aw 


\ 


')[)  III   till'  imlilir  iliii-iinirnts  111'  a  iialimi  lliat — 

'riicsi'  fmnish  ili'risivo  cxiilrmt'  iiiiiiiiixl  itiiji  Sluh-  wliicli 
aftcrwarils  ilcpails  from  tlir  piiiiriiilcs  wliirli  it  lias  tiiiis 
lirlilicialoly  invoUi'ii.  ami  in  cvrry  rasr  tliiis  clrarl.N  it-cot;- 
iii/c  tilt'  fart  that  a  .system  ol'  law  exists  wliieli  oiii.;'lit  to 
reii'iilate  ami  eonlrol  I  lie  inlerMatii)iial  relations  ol'  excry 
Stale.  (See  "Santa  ('ill/., "  M'  itoli.  .\iliii..  til :  rolson.  I,a\v 
of  Nalions.  .see.  .1:   I  ilalleek.  ji.  (Id.) 

'riirre  ran  Itc  im  Itrttrr  siinmiiiiu'  up  rnmi  all  the 
aiitlioritics  mi  this  .■«iilij('rt  tliaii  tlir  i'nllnw  iiio': 

III  till'  present  iiiiperl'eel  state  of  inlei national  law.  wliieli 
i'i'eo};iii/.i's  I  lie  ohliualory  force  of  no  written  eoile,  ami 
ai'knowleiljii's  no  permanenl  Jmlieial  expositor  ol'  its  priuei 
pies,  we  must  neeessarily  resort  to  the  preeeileiits  eolleeteil 
I'rom  history,  the  opinions  of  inriseoiisiilts.  and  llic  ihrlsioiin 
III'  IriliiiiKtlK,  ill  order  to  aseertain  what  these  prineiples  are. 
and  to  deteiinine  what  are  the  iiroin  r  n  !es  for  their  appliea- 


lion. 


Some  of   I  liese  |)iineiples  and  niies 


hav 


e  heeii  st 


tiled 


lor  afi'es,  and  have  the  foree  of  |ios.(!\e  laws  whieh   no  one 
will  now  veiitiiie  to  dispute  or  eall    i';<' i|iii'stioii.     (Sir  Slier- 


stoii  llaker's  Ilalleek,  \ol.  1.  p.  ."•<».) 


22  INTEKl'RETATION    AND    SCOPE    OK    THE    CONVENTION. 

Dcoisioiis  of  nuinicipjil  courts  iirc  ivccivcd  witli  tin- 
same  liiiiirations  as  altovc  jiivt-n  as  to  iiiiiiiicipal  liiWs: 
i.  v.,  tlu'V  arc  taken  auaiiist  tlie  nation  ot"  ilccision. 
(I  llalle'ck,  p.  CI.) 

Of  text  writers  the  same  rule.  The  works  of  text 
writci's,  wlicii  there  is  a  <>'euiTal  concurrence  of  views 
(I  Kent  Com..  \'ol.  1,  |i.  Ill),  hut  particularly  if  the 
text  writers  ami  authority  l»e  of  the  countrx' assertinu 
the  contrarx'  doctrim-,  the  authority  should  he  I'e- 
ceived.  (Sir  Sherston  Baker's  ilalleck  on  Int.  I.inv, 
Vol.  I,  pp.  (XMil.) 

In  the  lanjiuaiit'  of  i'hillimore: 

Ittiic  iiutlioiity  ol' Zoiicb.  of  \.vi\  of  ^lanslield,  and,  iibovc 
all,  oCSttiwoll.  he  against  the  demand  of  l'ai!:;land;  if  \  alin, 
Doniat,  I'otliicr,  and  Vattol  be  0])i((»si'd  to  the  pretensions  of 
I'nince;  if  (uotins  and  liynkershoek  confnte  the  claim  of 
Holland,  I'litfendorf  tiiat  of  Sweden:  if  Ilei'ieecins,  Leibnitz, 
and  \\dllf  anay  themselves  against  (iermany;  if  Story, 
Wheaton,  and  Kent  condonm  the  act  of  America,  it  can  not 
be  supposed  i except,  indeed,  in  the  parti<'nlai'  epoch  of  a 
re\<)lntion.  when  all  regard  to  law  is  tranii)led  under  foot) 
that  the  (ii-<iiiiii(iitiiiii  (1(1  /lalrlam  would  not  jirevail:  at  all 
events,  it  can  not  be  doubted  that  it  niK/lit  to  prevail,  am! 
should  the  coinitry.  relying  u])on  such  authority  be  com 
pelled  to  resort  to  arms  that  the  guilt  of  the  war  would  rest 
upon  the  antagonist  refusing  to  be  boinid  by  it.  i  I'hillimoie 
Int.  Law,  \ol.  1,  sec.  <I0;  Tricpiet  et  al.  r.  Itath,  .'!  Iiurr.  II., 
pp.  14-S(t;  1  Ilalleck.  p.  (11.) 


INTERl'Kl'.TATION  .\M»  SCOl'T,  OK    IHE  CONVICTION. 

Hefore  proceedinji'  to  a  consideration  of  the  treaty 
or  convention  under  discussion,  some  settled  rules 
re^ardino-  the  interpretation  and  scope  of  treaties  arc 
liere  cited. 

Ke;iardin<i'  treaties  like  this  for  the  peacefid  settle- 
ment of  disputes,  Sir  Sherston  Maker's  Ilalleck  on 
International  Law  (3il  edition.  \'(d.  I,  p.  4(iT)  says: 

If  the  contending  paities  have  agreed  to  abide  by  the  de- 
cision of  these  referees,  I  hey  are  bound  to  do  so,  except  in 


INTEBPRKTA.TION   AND    SCOPE    OF   THE   CONVENTION. 

Ciises  wlitMO  tlie  awiird  is  obtiiiiied  by  eoUu.sidii,  or  is  not  con 
lined  iritliiii  tlif  limits  o/  llitniilniiinsion.  It  is  usual  to  sjx'cify, 
in  tlie  atireenuMit  to  arbitrate,  tiie  exact  (luestions  irlii<'h  «»•«' 
to  Itf  ilcciilt'tl  I))!  the  Krhitnitorx,  (Uid  if  ilicy  c.irtrd  tlicsr  ftreciHe 
hi>uuils  itnd  pretend  to  decide  upon  oilier  points  than  those  siih- 
milted  to  them,  their  decision  is  in  no  respect  hindinij.  T'hus, 
tilt' awanl  of  the  Kiiij;' of  tlie  Netlierlands,  mi  I'elert'iice  by 
treaty,  in  IS'JT,  of  the  (|iu'stioii  ottlie  iiortlieasterii  boniidary 
of  the  I'liited  States,  not  beinj;'  a  decision  of  the  <iuestion 
siihinitted  to  him,  but  a  projiosal  for  a  coni|ironiise,  was  not 
refjarded  as  bindinj;'  either  uih)Ii  the  Tiiited  States  or  (Ireat 
Hritaiii.  and  was  rejected  by  both.     »     *     * 

'I'lic  iiit'aiiiiiii'  <d'  treaties  ui'  cxci'N'  kind  is  \^^  he 
asccrtaiiicil  1)\-  tlic  same  rules  td'  cniistnictiun  an<l 
rcasoiiiii;^'  wliieli  we  a|)])l\  to  the  iiit('r|irctatiiiii  nt 
>tatiitfs  ami  ))ri\atf  <'niitnicts.  ( 
Wlicatoii  Klciiicnts  lilt.  Law.  l*t 
anil  y.  ;5.'.."i:    I   llallcck.  ji.  L'Ofl.) 

To  li'd  oiitsiilc  id'  the  treaty  in  scareli  id  cinijiTtim 
is   ti>   I'liilcaMir    tn   eliide    it. 
(ielis,  Li\.  11.  ell.  WU.  sees 
I.  see.  WW.  p.  -JUT.) 

(ireanlcal  -.ix  >   (( ireeiilcal 

\vi\y. 

When  parties  1ia\  e  delibcratelv 
writiiifi'  in  siuh  terms  as  iiii|ior; 
any  uncertainty  as  to  tlie  ohjeci 

men  I.  it  is  conciusivel.N  i»resiiiiied  that  the  wlmlc  i  ima.ui'ineiil 
of  the  parties,  and  the  extent  ami  inaniicr  of  tin  ii  miiicrtak 
inn,  was  reduced  to  \vritiii]n';  and  all  oial  tesliiiiony  of  a  pre- 
vious eolloiiniinn  between  the  |iarties.  or  of  convci -nation  or 
declaration  at  the  time  when  il  was  coiii|deted  or  afterwards, 
as  it  would  tend  in  many  instances  to  siilistilute  a  new  and 
ilirt'erent  contract  for  the  one  which  was  really  ajireed  upon, 
to  the  pn'.judice,  possibly,  of  one  of  the  parties,  is  rejected. 

The  lirst  maxim  ul'  \  attcl  is: 

It  is  not  allowable  to  interpret  wliat  has  no  need  of  inter 
pretation,  for  when  a  treat,\'  is  conceived  in  (dear  and  precise 
terms,  and  the  sense  is  manifest,  and  leads  to  no  absiirdit.\-, 
there  can  be  no  reason  for  refusinji'  the  sense  which  is  natii 
rally  ineseiited  and  manifest.     To  go  elsewhere  in  scan  h  ot 


•J3 


Kent  (  'iini..  p.  1  <  1: 
cliaji.  ■_'.  scr.  1  7. 


(\'atti'l.   \.v    Drnit    ucs 
L»(;;;-l".iS:  llallrrk.\'id. 


on   l',\  lilrnrc. 


Vol.    1. 


at  their  enuaj;einents  into 
liual  nldiiiiitioM.  wjthiiiit 
I   ixtciii  of  sncli  cii"ay;e- 


■lii 


rm^ 


IfTWWiT 


24        interpketation  and  scopk  of  the  convention. 

conjectures  is  to  endeavor  to  elude  it.  (N'attel,  Le  Droit  des 
Gens,  Liv.  II.  Cb.  XVI],  sees.  2G3-21»8:  Halleek,  Vol.  I,  297.) 
The  whole  treaty  must  be  considei  d  together,  and  an 
interpretation  given  to  each  particular  expression  so  as  to 
agree  witli  the  tenor  of  the  whole  instrnnient.  (Vattel, 
supra;  Ilalleck,  Vol.  1,  29H.) 

^'Jltt<'l  says: 

In  order  to  obviate  all  (litliculty  it  is  necessary  that  the 
arbitration  articles  siutuld  jirecisely  specify  the  subject  in 
dispute — tiie  demands  of  the  one,  the  objections  of  the  other 
*  *  *  if  then  the  sentence  be  confined  within  these  i)recise 
grounds  the  disiJUtants  must  aci|Uiesce  in  it.  (Chitty's  Vat- 
tel (I'liihu).  p.  L'TT.) 

It  is  clear  tliat  tlic  scojic  ut'  tin;  treaty  or  ('(mvciitioii 
is  to  lie  iiiiiitefl  strictiv  to  tlie  coiit'erriiit''  powers  ot" 
tile  instnmieiit. 

The  decision  by  arbitrators  must  be  disicgardcd  wlieu  the 
tribunal  lias  clearly  exceeded  the  powers  given  to  it  by  the 
instrument  of  submission.  (Hall  on  International  Law,  'Itli 
i;d..  p.  .tTtt.) 

'riiei'e  lieiiij;-  no  ol>seurit\  oi"  aiiilii<iuit\'  in  this  con- 
\  fiirion.  I'et'ereiice  to  i/ofi  s  rcrlxdcs  or  (li|iloniati('  corre- 
s|ioiii[eiice,  or  any  other  extniiieous  matter,  is  not 
lierniitted,  to  enlariic  its  scope,  as  is  atteiiijited  U)  he 
done  in  the  l>ritish  ar^nnient  re"'anlin<i'  the  claims  to 
lie  considered  under  it. 

It'  there  were  <iiiscurities  on  the  lace  of  the  treat\' 
itself,  the  rule  is  pert'ectK  well  settled  as  to  contracts 
aiul  treaties  that  the  tirst  resource  tor  enli<;litemnent 
nuist  lie  to  read  all  the  parts  of  the  treaty  or  con- 
tract together  for  a  solution  of  the  diiliculty,  and  the 
second,  to  search  the  contract  <ir  treaty  for  any 
fcfcrriici'  to  extraneous  matters  which  may  <;'ive 
eidi^htenmeiit. 

The  presmnjition  is  that  the  provisions  of  a  treaty  are 
intended  to  be  harmonious,  and  nothing  short  of  '-lear  proof 
of  intention  can  justify  any  interpretation  of  a  single  pro- 
vision which  brings  it  into  collision  with  the  undoubted 
intention  of  the  remainder.  (Hall  on  Int.  Law,  4th  Ed., 
pp.  35.t-3.")i,  and  see  ji.  .J.jO.) 


iff  ffffflW 


INTEKI'KKTATION   AND   SCOPE   OF   THK    CONVENTION. 

Ill  this  cjisi'  tlit'rc  is  express  reference  to  the  iind- 
iiiji's  (»t'  tact  of  the  I'jiris  'rrilmnal  as  disclosiiij;-,  detiii- 
iiiy,  ami  liiiiitiiiy  the  chiiins  whicli  are  referred  t(»  the 
C<»iiiiiiissioiiers.  Those  tiiidiii;«s  are  iiia(K'  a  i)art  of 
this  Coiiveiitioii.  (See  8ed<i\vick  Stat.  ('oiist.,ii.2'il».) 
A  reference  in  a  statute  to  a  prior  statute,  a  (hicuiiieiit, 
or  a  map  makes  it  i)art  of  tlie  statute.  (See  cases 
cited  hy  Sedjiwick.) 

It  appears  Ity  this  record,  as  well  as  by  lVotoc<d 
XLI  (I'aris  Commission,  Vol.  1,  U.  S.,  p.  4^}).  that 
Her  Majesty's  (Jovermiieiit  prepared  every  word  and 
line  of  that  tindiii<>-,  and  that  it  was  sulistituted  for 
the  proposed  tindiiiy-  siihniitted  by  the  Tiiited  States. 

Article  IX  of  the  award  shows  the  same  thiii;^'. 
Tliiit  award  bein<i'  made,  by  a  settled  rukuif  «'onstruc- 
tion,  a  part  of  this  convention,  by  express  and  (h'tiiii- 
tive  reference,  by  date  and  article,  in  the  third  ]ire- 
ainlile  thereof,  we  <iii<l  that  the  claims  and  the  jiersoiis 
in  whose  liehalf  CJreat  Britain  may  claim  compensa- 
tion before  this  commission  are  limited  by  Article  I, 
and  bv  every  subsecpieiit  article  referrinjjf  to  the 
claims.  "  Kacli  claim,"  and  "on  account  of  any  claim- 
ant" appear  tlirou<;hout.  And  all  refer  liack  to  Arti- 
cle I,  and  so  back  to  the  Award  and  Findinji'  of  facts 
for  description  and  limitation  of  the  subjects  referred 
to  the  C'ommi.ssion. 

This  beiiiii'  so,  by  a  settled  rule  of  international 
law,  applicable  to  the  interpretation  of  treaties  as 
ajiiiiiist  the  nation  preseiitinji'  the  draft  of  the  subject 
of  this  reference,  the  construction,  in  <  ase  of  dispute, 
must  be  taken  most  stroiijily  a<>ainst  that  nation. 

\\u<X(^  (irotius  lays  down  the  rule  that  "the  inter- 
pretation must  lie  made  a<iainst  the  jiarty  which 
drafted  the  «'<tnditions:  77  iiiiifni  cuiu  fiitt  iiifcijirctfi- 
fio,  ifiii  ctiml/tiiDics  clonitKs  i-st.'" 

And  X'attel  says: 

Here  is  a  rule  which  cuts  short  all  chicanery :  If  he  who  oould 
and  should  express  himself  plainly  and  fully  has  not  done  so, 

n  s 4 


2o 


■im 


'""•'mmr 


•2i)  INTERPRETATION    AND   SCOPK   OK   THE   CONVENTION. 

so  iniicli  the  worse  tor  him;  ho  can  not  be  permitted  sub 
seciuently  to  introduce  restrictions  which  lie  lias  not  expressed. 
It  is  tlie  maxim  of  Homan  hiw,  "An  obscure  contract  harms 
those  in  wliose  power  it  was  to  hiy  down  the  law  more  clearly.'" 
The  equity  of  this  rule  is  self-evident;  its  necessity  is  not  less 
obvious.  There  can  be  no  assured  convention,  no  tirm  aud 
solid  concession,  if  they  can  be  rendered  vain  by  subseiiuent 
limitations,  whi(^li  ouj^ht  to  have  been  announced  in  the  act, 
if  they  existed  in  the  intention  of  the  contractinjj;  parties. 
(Pajters  relating  to  the  Treaty  of  Washington,  vol.  ">,  \).  1,'J, 
Jierlin  Aibitratioii.) 

I>y  ii  |)!irity  ot'  rcasoniiijjisucli  nation  can  not  enlarge 
till'  sco|i('  (d'  the  draft. 

This  ( 'oiniiiission  is  as  cli-arly  liniiti'd  l>v  tlu'  sclu-d- 
ulc  of  Hritisli  (daims  lud'on'  tlic  I'aiis  'I'rihunal,  and 
tiu'sc  spccilically  and  with  «'xa('t  |iri'cisi(in  dt'scriiu'd, 
from  pauv  to  pap'  inidnsivc,  in  the  *'  Findinu"  n-fcrrcd 
to  in  .Vrtich"  I  and  tlic  |ircand)h'  (d'  this  Convention, 
as  if  that  schedule  were  set  out  in  the  itody  of  the 
( 'onvention. 

.\i'ti(de  I  refers  to  a  schedule  which  purports  to  he 
a  sununarv,  Itut  it  also  refers  in  terms  to  the  iindin^^s 
of  fact  for  the  full  and  detailed  statement  of  what  is 
referred  to  the  Connnission,  aud  the  liudinus  of  tact 
ar<',  we  repe.;t,  expressly  made  a  part  of  the  ("onven- 
tion 1)\'  ret'eiTinii'  hack  to  the  preand)le,  where  those 
tindinii's  are  ideutilied  with  as  uuudi  etVect  as  if  em- 
l)odied. 

The  authorities  unite  in  iletdarinj:'  that  the  ordiuarv 
rule  of  iuterpretation  of  contracts  and  statutes  applies 
to  the  interpretation  of  treaties.  The  rule  has  added 
emphasis  when  the  international  compai-t  is  entered 
into  amonji'  nations  wlii>se  orj;auie  law  re(piires  the 
ratification  of  the  eitmpact  l>v  more  than  one  branch 
of  the  Government. 

This  aspect  of  that  (pustion  was  exhaustively  dis- 
cussed Ity  arl)itrators  and  hv  counsel  in  the  Paris 
Trilitnial.      it  arose  out  of  the  propo.sed  tiiuliufi'  of 


i^ 


IXTEKPKKTATIOX   AND   SCOPE    OF   THE  _  CONVENTION. 

facts,  iuid  tliiit  discussion  cxpljiiiis  tlu-  rciisdu  why, 
under  Article  \'lll  of  tiie  treaty  of  l'Vl)niary  211, 
IStl'i,  c(»nfemnji'  n|Hin  tlie  arhitrators  jxtwer  to  find 
(]uestit»ns  of  fact  involved  in  the  chiiins  of  the  one 
nation  a^^ainst  the  other,  they  avoided  findinji'  any  fact 
essentially  involvinj;'  a  conclusion  of  liahility. 

One  fjUestion  discussed  and  avoided  in  the  findin<>' 
was  whether  the  arl)itrators  had  power  under  the 
reference  of  Article  VIII  to  find  that  any  act  of 
the  United  States  or  of  Great  Britain  was  "wron<>'." 
Another  (|nestion  discussed  was,  whether  a  findinji'  of 
fact  niijiht  cover  tln'  (|Uestion  of  how  the  ([uestion 
of  citizenslii])  would  atfect  the  (|Uestion  of  liability. 

These  Hndinjis  were  all  avoided,  first,  l»ecause.  by 
the  ])r(»i)i-.  ai'd  strict  construction  of  Article  \'1 1 1,  the 
trii)unal  had  no  power  to  find  facts  on  which  a  liability 
or  an  escaju'  from  liability  w<»uld  directly  follow:  and 
second,  because  no  representative  of  the  United  States, 
without  the  concurrence  of  the  Senate,  could  by  con- 
sent enlar<>e  its  sco])e.  (See  collcxpiy — Sir  Charles 
Kussell's  argument  for  (Jreat  Jiritain,  U.  S.,  vol.  13, 
pp.  4(1-06,  inclusive.) 

It  is  therefore  especially  true  here  that  arbitrators, 
or  commissioners,  always  liniit*'d  to  the  powers  and 
to  the  suljjects  in  exjiress  terms  referred  to  them  by 
a  treaty  or  convention,  have  not  the  power  to  enlar<>'e 
its  scope  or  l)y  interpretation  and  coiistnu'tion  to 
make  what  is  known  in  domestic  jurisprudence  as 
judicial-made  law. 

The  construction  contended  for  in  the  arffument  of 
Great  Hritain  is  a  menace  to  the  convention  itself 


27 


.:l4 


m 


This  is  a  reference  of  s])ecific  claims,  and  in  this 
respect  is  unlike  certain  claims  conventions,  and  is 
like  others. 

Under  the  claims  convention  between  the  two  coun- 
tries of  February  S,  1853  (Treaties  and  Conventions 


1,1-  .mi  '^I'ljiiPtf 


2H         jntehpkktation  and  scope  of  the  CONVKNTION. 

lu'twi-cn  flic  L'liilcd  Stiitcs  ami  otiicr  powers,  Kd. '811, 
\)\).  44")-(l),  tliiTv  Wiis  ivtV'nvd  to  the  Commission  in 
ti-rms: 

AuTicLK  I.  *  *  *  All  ('liiiiiis  oil  tlie  part  of  ('orjiora- 
tioiKs,  (;oiiipaiiies,or  })iivate  individuals,  citizens  of  tlio  I  iiited 
States,  u|)()ii  the  <toveriiinciit  of  lltu'  ISiitaiinic  Majesty,  aud 
all  claims  on  tli»^  i)ait  of  corporations,  companies,  oi  private 
individuals,  subjects  of  Her  Ihitannic  Majesty,  iii)oii  the 
Governnieiit  of  tlie  I 'nitod  States.  ((•/(/(■//  iiiiti/  liiirr  hiin  prr- 
seiitrd  111  either  (tiirerumviii  for  its  interposition  iritli  the  other 
since  the  sifiiiiitiire  of  the  treaty  of  peuee  oiiil  frienilshij)  eon- 
eluileil  lietireen  the  I'liited  States  of'  Ameriea  anil  (I rent  Itritain^ 
at  (Ihent.oii  the  JIth  of  Ihreinlter,  /iS7>,  ami  whieh  i/et  remaineil 
nnsettleil,  as  a'ell  as  (uij/  other  such  vliiims  n-hieh  mail  he  pre- 
senteil  irithin  the  time  siiecijied  in  Article  II f,  etc. 

It  lias  Ihh'Ii  t'ir(|n('ntlv  lii-ld,  nndcr  sucli  a  cont'iT- 
mcnt  ot"  |io\v('i',  that  tlic  (•ommissioncrs  nia\'  jiidj^'i'  ot 
their  own  jurisdiction  on  the  ([nestion  of  citizenship; 
but  it  is  e(|iiallv  clear,  and  was  held  nnder  that  com- 
mission, that,  as  to  all  claims  which  had  not  heeii  pre- 
sented to  either  ( iovernment  since  the  treaty  of  1S14, 
or  which  weri'  not  presented  within  the  time  specified 
in  Article  1 1 1,  the  ( 'ommission  had  no  jurisdiction. 

Hy  the  treat\'  of  W'ashintitoii,  Arti(de  XII,  a  com- 
mission was  created  to  whicii  was  referred: 

All  claims  on  the  part  of  corporations,  companies,  or  pri- 
vate individuals,  citizens  of  the  United  Stales,  upon  the 
Goveinineut  of  Her  ISritannic  Majesty,  arisinjj  out  of  acts 
coniniitted  against  the  i)ersoiis  or  property  of  citizens  of  the 
I'nited  States  during'  the  i)eriod  between  Aju'il  V.i,  lS(!l,and 
April  !),  1.SG5,  inclusive,  not  beiuR'  claims  };rowing  out  of  the 
acts  of  the  vessels  referred  to  in  Article  I  of  this  treaty 
(Alabama  Claims),  and  all  claims,  with  the  like  excei)tion,ou 
the  part  of  corporations,  etc.,  subjects  of  Her  Hritaniiic  Maj- 
esty, upon  the  trovernment  of  the  Tnited  States,  arising  out 
of  acts  coniniitted  against  the  persons  or  property  of  sub- 
jects of  Her  Uritannic  Majesty  during  the  same  period,  which 
may  have  been  jiresented  to  either  (Government  I'or  the  inter- 
position of  the  other,  and  which  yet  remain  unsettled,  etc. 

(Id.,  p.  m.) 


'?  i:l 


INTERPRKTATIOX    AND   8COPK    OF   THE   CONVKNTION. 


29 


It  proci'tMls  like  tlit' Coiivi'iitioii  of  lsr»3.  providinj^- 
"tor  iiiiv  other  siicli  clfiiiiis  ns  iiifiy  Itc  pivst'iitcd" 
witliin  a  Cfrtniii  tiiiic. 

Oil  tilt'  jiciicral  rct'crciicc,  the  jiirisdictioii  to  decide 
MS  to  who  were  si-hjects  oi-  citizens  was  iindonltted, 
liiit  on  tiie  speciiic  limitation  as  to  the  chiss  ut'  chiinis, 
in  tliat  they  nnist  have  arisen  hetween  April  1,''>,  l.S(;i, 
and  April  !),  isilf),  and  in  that  they  must  not  lu- 
claims  ji'ro\vin;idnt  of  the  acts  of  the  vessels  referred 
n>  in  Article  1,  it  is  clear  that  there  conlil  he  no  juris- 
diction whatevev  in  the  commission. 

Like  conventions  with  similar  ))rovisions  as  to  citi- 
/eiiship  were  entered  into  by  the  I'uited  States  with 
France  .lanuary  lo,  1S8();  with  S|)!Mn  Kehruary 
ll-ll*,  1S71:  with  ]\rexico  July  4,  ls6S:  nnd  with 
(ireat  Britain  ,lidy  li',  1sl>-_>  (Id.,  j)]),  'jr.i;,  4ls,  TOO, 
10'_*"»),  for  the  purpose  of  ascei'taiuiu"'  and  determin- 
ing' the  amount  of  indemnilication  ilue  to  the  citizens 
of  the  Tnitetl  States  under  the  decision  of  the  Km 
perorof  Ihissiji  (referre(|  to  in  the  opposin;:'arj'ument). 

Articles  II  and  III  of  that  treaty  provided  for  a 
method  of  ascei'tainment  of  the  avera!.;('  \alue  of  cer- 
tain property,  ami  havinji'  ascertained  that,  it  inis 
limridcil  that  the  Secretary  of  State  shouhl  furnish 
the  ( 'onnnissioners  (/  list  of  this  mid  ullicy  /iiiratf  jirop- 
I  if//  fur  irliiili  tlir  <iti.ii-iis  (if  till'  I'liitril  Statr.s  ilniiiii'il 
iiiilriiiiii/irdfinii  iiiiiti')' flic  iiirunl  of  fill'  Uiissiini  Kiniinoi; 
tlierel>y  limitin;^'  the  jin'i.sdiction  of  the  Cinmiissioners 
Ity  a  specific  list.     (Id.,  p.  420.) 

'i'he  hist(»ry  of  the  Alabama  tri-aty  an'!  arbitration 
is  ('specially  instructive  in  this  connection,  because  of 
its  itroad  conferment  of  jurisdiction  and  its  bearing 
on  the  contention  of  (Ireat  Uritain  here  that  tiiat 
(Jovernment  may  present  a  national  claim  as  distin- 
liuished  fr(»m  those  })reseute<l  on  account  of  its  sub- 
jects.    (Id.,  }).  478.) 


■!  >■ 


mmmi^ 


imm 


30  INTICKI'KKTATIUN    ANH    SCOPE    dl"   THI'.   CONVKNTIOX. 

Artich's  1.  Ill,  iiiid  X  ciiild-jict'  tlic  (•(•iit'iTiiU'iit  of 
jurisdii'tidii  U|miii  tlic  iii°l>iti'iiti)rs,  iiml  so  iiiut'li  of  tlicsf 
articles  !is  is  iicccssiirv  to  «'o\t'r  the  point  \vc  siilnnit. 
(I.I.,  pp.  47!t,  4«1--J.y 

AiiTiCLi".  I.  Wlicrciis  (lilVerciicfs  lia\c  arisen  iK'twccii  the 
(.ioveniinent  of  tlio  United  States  and  the  (iovernnient  of 
Her  lliitaiinic  Majesty,  and  still  exist,  fiiowiiig  out  of  the 
acts  coniMiitte*!  by  tlie  several  vessels,  wiiich  have  jjiven  rise 
to  ///(■  cliiims  (/I  iivririillj/  hiioirn  tin  the  *^.\ltili<imii  Cloims."' 

And  whereas  her  IWitannic  Majesty  has  authorized  her 
Ilit;h  Commissioners  and  iilenipolentiaries  to  exjness,  in  a 
friendly  sjiirit,  the  lej^ret  felt  Ity  Her  ^lajesty's  (iovernnient 
for  tlie  eseape,  under  whatever  eirennistanees,  of  the  Ala- 
hiimii  and  other  vessels  from  I>ritish  ports: 

Now,  in  order  to  reiuovu  and  adjust  all  complaints  and 
claims  on  the  i>art  of  the  I'nited  States,  and  to  provide  for 
the  speedy  settlement  of  such  claims  which  are  not  admitted 
by  Her  Itritannic  Majesty's  (lovernment,  tlu'  hij{li  contract 
iiijj  i)arties  afjree  that  all  the  siiiil  rlaiins  (jroirittii  out  i>/ nets 
rommittfd  liy  the  ii/dirKoitl  vvHurlx,  anil  fieiierirallji  kiioini  as  thr 
^^Alahiima  Clnims"  shall  he  le/irrcil  to  a  tribunal  of  arbitra- 
tion to  be  composed  of  live  arbitrators,  to  be  appointed  in 
the  ftdiowiu};'  nnuiner,  that  is  to  say  :  One  shall  be  named  by 
the  President  of  the  United  States;  one  shall  be  named  by  Her 
liritannic  Majesty;  His  Majesty  the  Kiufi  of  Italy  shall  be 
rei|nc8ted  to  name  one;  the  President  of  the  Swiss  Confed- 
eration shall  be  rciiuested  to  name  one,  and  His  Majesty  the 
ICnijieror  of  IJra/.il  shall  be  requested  to  name  one. 

•  •  •  •  * 

Akticlk  Vlll.  *  »  •  The  said  tribunal  .shall  ttr.st 
deteiininei.s  to  each  vessel  separately  whether (ireat  IJritain 
lias,  by  any  act  or  omission,  failed  to  fiillill  any  of  the  duties 
set  forth  in  the  forcfjitin;;  three  rules,  or  recotjiiizcd  by  the 
(irincipl's  of  international  law  not  inconsistent  with  such 
rules,  and  shall  certify  such  fact  as  to  each  of  the  said  ves- 
sels. In  case  the  tribunal  tind  thatCreat  liritain  has  failed 
to  fulllll  any  duty  or  duties  as  aforesaid,  it  may,  if  it  think 
proper,  proceed  to  award  a  sum  in  jjross  to  be  paid  by  (ireat 

Britain  to  the  United  States  for  all  the  claims  referred  to 
jl^     •     *     • 

Aeticlk  X.  Inca.se  the  tribunal  llnds  that  (heat  Britain 
has  failed  to  fulfill  any  duty  or  duties  as  albre.said,  and  docs 
not  award  a  sum  in  {jros.  the  high  contractiiifj  parties  agree 
that  a  boai'd  of  asses.sors  shall  be  appointed  to  a.sccrtain 
and  determine  what  claims  are  valid,  anil  what  amount  or 


m 


^  I 


INTKKPHKTATION    AM)   SCOPK    MK   THK   CONVKNTIO.V.  .'U 

iinuHintssliiill  Im  paid  liy  (Jieuf  Britain  totlic  Uiiitt'il  tStates 
1)11  iM'coiiiit  of  tlit^  liability  ari.Hiii<;  IVdiu  sikIi  I'ailuri',  im  to 
idvli  nss(l,\u-von\h\ti  to  tlie<'.\tiMitot'su('ii  liai>ility  as  decided 
l>y  tlu'  arbitrators.    •     •     • 

Tlic  iiu'iiibei's  tlicreol'sliall  subscribe  a  Holetnii  declaration 
that  tliey  will  impartially  and  (■arctuliy  exaniiiie  and  decide, 
to  tlic  licst  of  tlicir  .iii(l<>n)eiit  and  actiording  to  justice  and 
eijuity,  all  nuitters  submitted  to  tlieni,  and  shall  I'ortliwitli 
proceed,  under  such  rules  and  rc<tulations  as  they  sliall  pre- 
scribe, to  the  inxestifjation  ol'  the  claims  which  sliall  be 
presented  to  them  by  the  (loverniiieiit  of  the  United  States. 
iiHtl  niiiill  r.nimhir  iiiitl  ih'ciilv  iiikhi  tlifiii  in  hiicIi  orihr  iiiul 
niiuiiiir  iix  Ihiif  mail  Ihinl;  proitcr.     •     *     * 

The  ilirinioii  of  the  iixscumirs  xlnill  hv  i/irni  iipDn  cncli  vlnhii 
in  writiiiji,  (inil  xliall  /«■  xiynt'd  Inj  Ihcni  rvniwvtirvUj, 

Now,  ill  order  to  (IcttTiiiiiii'  liy  juridiciil  iisccrtiiiii- 
iiii'iit  wliiit  was  covered  hy  the  jiliriise  "<i('iienealh' 
known  as  the  Ahiiiaiiin  (  Maiiiis,"  (tliiis  not  s|iecilieall\ 
(lescrihed  as  liere)  reference  was  had  by  tlie  triliinial 
to  the  authoritative  and  certitied  record  of  the  afti(»ii 
of  the  .loiiit  lliji'li  Coininission  wliich  framed  the 
treaty,  statin<>"  the  iiiiestions  to  he  siihinitted  to  the 
Arbitrators. 

('I'iiis  will  lie  foinnl  in  Appendix  No.  1  hereto.)  l'a«i' lOo. 

Tile  coiifennent  of  jurisdiction  was  certaiiilv  iiroad 
eiioujih  to  cover  national  ehiiins  in  the  case,  Imt 
liefore  the  lieaiinj^s  of  the(ieiieva  .\rl»itration  were 
opened,  and  as  soon  as  tiie  iVinerican  case  was  pre- 
sented, (Jreat  l$ritain  intiniate(l  the  ])in'pose  of  that 
({overnineiit  to  with(h'aw  from  the  arbitration,  on  tiie 
iiToiind  that  the  national  claims  were  not  properly 
lu'fore  it;  and  then  by  the  assent  of  the  I'nited  States 
tiie  arbitration  was  saved  by  an  order  eliminatinji'  the 
national  cdaims  of  the  Tinted  States  from  the  proto- 
col, (Jreat  Hritaiii  holding'  that  the  tribunal  had  no 
jurisdiction  in  the  jireniises.  (See  IVotocols  I,  HI 
and  its  Annex,  V,  \'I,  and  VII,  Papers  |{elatin<>-  to 
the  Treaty  of  Washinjfton,  Vol.  4.)* 

Thu  Hritisli  coiinsfl  inMisteil,  too,  thattliu  only  shipH  wliich  apiieaiiitl 
iu  the   procejidiuKs  of  thu    High   .loint   (JoiiiiiiiNHiou   weiu  the  I'lorida, 


'^^■Mi 


mm 


32 


INTKHPm;TATI(»N   AM>    WCOrK    OK   TIIK    CoNVKNTION. 


Ill  tlif  li^lit  of  tlif  turcjioiii^i'  !iiitli(iriti«'s  mid  tliis 
liislniv .  wf  if|ir(p(liici'  licrc  tlic  <|U«'stioii  iin»|i(iini(U'(l 
in  till'  (i|i|Misiii;;'  l»ri(  I  ns  t'olluws: 

Tlif  liist  (iiu'stiiiiis,  flicn-loic.  nrt'.  Wlnit  art'  tin'  cliiiips. 
iiiul  ill  wliiisc  iK'liiilf  is  (ii't'iii  lii'itaiii  ciititk'il  to  I'ltiim  com- 
lu'iisiitioii  /    (l'"(il.  10,  \\.  14.) 

'riic  Jiiisw ci'  tlific  set  down  is  iitfcniiitcd  to  Ih'  <ii\ en 
from   tlu'  iliiildiiiiilic  I  iiin^^iKiiiih  iirr  ln'twccii  llu'  (Jo\- 


frniiicnts,   iiicliidini''   ikiIck    rcrlxi/is,   cxtcml 


III' 


troiii 


Octohcr  ■_'].  isstj,  down  to  lslM>,  iiiid  fr(»ni  tli  domes- 
tic corrcsiMiiidciifc  in'twci'ii  tlic  cljiiiiiiints  ;ind  tlic 
( iovcriimciit  of  tlu-  Dominion  of  ( 'iiniidii — the  I'liitt'd 
Stiifcs  liii\iii^'  no  ili|ili>iiiiitic  rcliitioiis  with  tluit  (iov- 
iTiiiiit'iit — iiiid  w  iiicli,  liy  tlic  wiiy,  wiis  never  l»rou;^lit 
to  the  iitteiition  of  the  I'nited  Stiites. 

Alter  coiisiderinj;'  these  iiiciins  for  inter] ii'etin;;'  a 
conveiitioii  which  confessedly  contiiins  no  !iiiil)i;;iiity, 
this  conclusion  is  reached  on  those  premises  in  the 
Uritish  iirji'iiineiit  (p.  LS): 

It  is  tlieit't'ori'  siiliiiiittcd  tiiat  tlic  claims  refer  "d  t<'  re  all 
tlic  claims  wliicli  had  liceii  prcsciite<l  and  ur;;i'd  yiiicat 
Itritaiii  prioi' to  the  date  of  tlic  convention;  and  further,  that 
(ireat  llritain  is  entitled  to  eoinpensatioii  Iroi'i  the  I'liitcd 
States  on  livr  nini  hrlHtlf,  and  on  behalf  of  every  iieisoii  who 
was  interested  in  any  of  the  vessels  in  (|iiesti()ii.  their  car- 
{{ocs  and  voyage,  <'itlier  as  owner,  master,  mate,  iiiciiiber  of 
the  crew,  or  otherwise. 


'{'he  answer  of  the   I'nited   States  to  tiie  (|iiestioii 


dtio 


ted 


<ii/ii(i  IS  tins: 


The  "claims"  are  such  as  are  specilically  ilescrilied 


.lltihiiiiHi,  (i<iiiiiiii,tiui\  f^lii  iuiii(limli.;\ui\  tliat  IIk 


llv' 


kiiiiwM  aH  the  "Alitliaiiia  claliii 


('.«(■  liL'caiiu'  ">;>'i"'i'if'a 
t  Sec  Itiitisli  ar;;niii('iit,  l'a|ioi'.s  rclat- 
inn  t"  •'"'  Trcalv  of  \Vasliiii;;toii.  Vol.  11.  p.  L'lill.  par.  :f. )  And  latur,  uri 
that  f^ronnil  tlii'  i'dmiikl'I  t'orllriat  itritain  ilt^ilaiecl  to  tlic  Aibitratcus 
"hi  tlic  must  cNpJirit  niannt'r"  Ulms  HunKeNtlii;;  a  pnipo.Ho  not  to  In- 
liomid.  (ir  to  "  witlnlraw,"  as  in  the  cane  of  the  national  claliim)  tliat 
claims  ill  rpspcctot'  vessels  •  *  s|i«'eitl«il  in  the  casr  ot'the  I'liiteil  States 
anioiiK  tlmse  lor  whose  acts  the  I  iiiteil  States  nskedtlic  I'rilmnal  to  liold 
(iruat  Mritalii.  aic  not.  ill  the  view  ol  Her  Majesty's  (ioveriiment  upeii  to 
arKiiiiieiit  or  discussion  ••smci-  theij  cini  nol  pniinilii  he  lakm  into  mimid- 
erutioii  hji  thr  .lihiliulorxfur  iiiiii iinriium  irliulrrer."    (Id..  p.Jtil.i 


INTKUPKIVl'ATION    AND   8(.'0PK    OF   THE    CONVKNTION. 

IIS  rctcncil  to  the  CJtuiiiniHsion  in  aiitl  by  the  (Mtiivon- 
tioii  ut'  lM'l)nmry  S.  1S!)6,  im»l  tlw  "itcrsotis  in  wliose 
l)('li!ilt'  (Jrciit  liritain  is  ciititlcil  to  fl.iini  (miiiponsa- 
tinii"  art)  tlioso  s|i('ci(ically  named  in  that  convention 
as  the  persons  who  |»resent(Ml  the  elninis  at  Paris, 
iiiih'ss  and  except — 

(<i)  Tlie  Tnited  States  estalilish  that  another  per- 
son in  any  case  is  tlie  "actnal"  owner  who  is  a  citi- 
zen of  tli<^  United  Stat<'s — an  exception  provifh'd  for 
in  tile  convention  itself 

It  is  not  douhted  at  all  tliat  a  representative  of  a 
(h'ceased  chiiniant  (»r  liis  assi<;'nee  could  present  the 
claim,  lint  in  such  case  he  would  stand  in  all  respects 
as  to  rifihts  and  disaliilities  as  tla;  ori<iinal  claimant 
would  have  stood  inider  the  convention. 

For  the  ascertainment  of  the  jurisdiction  of  the 
('onmiission  over  the  suiiject-niatter  the  Convention 
of  Feliriiary  S,  iSlMi.  consists  of  three  documents:* 

(1)  The  convention  standin;;- detached,  which  does 
not  dis(dose  what  claims  are  referred  to  the  C'oin- 
mission,  or  how  they  "arise,"  or  what  they  are,  and  is 
unintelli<4ilile  oii  the  ipiestion  of  jurisdiction  without 
reference  to  the  other  two  documents  which  are  named 
ill  it. 

(2)  The  treaty  sijiiied  at  Washington  on  Keliruary 
2!»,  1X92,  named  in  it:  and  from  this  it  appears  that 
the  claims  referred  to  the  Conimission  must  lie  claims 
"arising"  inider  that  treaty:  that  is,  the  (Commission 
is  limited  to  the  consideration  of  claims  for  injuries 
that  arosi'  out  of  the  assertion  of  the  claim  of  the 
I'nited  States  to  jurisdictional  ri^^iits  in  the  waters  of 
Uerinji'Sea  with  n^ference  to  seals,  which  is  thesuliject- 
II latter  of  that  trtfatv. 


;{3 


III  coniiectioii  with  the  aiKiiiimiit  on  coimtnictiim  to  t'ollow,  tilt-  Com- 
iiiissioncrs  will  lie  I'liniislii'cl  tlio  Tront.v  of  isitj,  tlio  I'iiuliiiKs  of  Fact, 
1111(1  the  Schedule — |i|i.  1  trOtiO,  imliisive — therein  ret'eired  to,  iinil  thet'on- 
veiition  of  IKlHi,  printed  tii);ether  in  couvenlont  form,  to  lie  referred  to 
for  iicciirate  coniimriNOii  with  the  iiro^jrens  of  the  nrj;miient. 

B  s 5 


^ 


i 


34  INTERI'KKTATION    AND    SCOPE   OK   THi:   CONVKNTION. 

C'lcJirly,  liciv  is  ;i  limitation  wliicli  |HTveiits  this 
Conimissioii  t!ikinj:('()<;nizaiu't' ot'iiiiyclaiiii  toriiijurit's 
c'Oiimuttcd  by  the  United  States  <>('norallv,  as,  tor  in- 
stance, (II  a  niercliant  ship  or  a  wluder  on  the  hi^^h 
seas,  whicli  woiiM  have  l)een  coonizabh'  nnder  the 
eonveiitions  ot'  IS^S  and  ISTl. 

(.'i)  The  Award  and  the  Findin<>s  ot'  tlie  'Priltunal 
of  Arl>itration  are  f'onnd  speciticidly  referred  to  in 
this  convention  l»y(hite,and  especially  tind  there  speci- 
fied certain  Findinji's  of  Fact:  and  S(t  the  "claims" 
nnist  "arise"  as  will  by  tlie  Award  and  the  Findin;^s 
of  Fact  as  by  the  Treaty;  and  in  this  award  and  tind- 
in^^s  of  fact  so  referred  to  as  delininj;  what  this  Com- 
mission shall  take  cojiiiizance  of  (a  limitation  in 
addition  to  that  which  we  havi'  seen  attached  bv  the 
reference  to  tln'  Treaty  of  ISil'J),  we  find  our  way  to 
till'  carefully  prepai'i-d  schedule  of  claims,  pre])ared 
by  (ireat  Mritain  and  sworn  to  \)y  the  claimants,  of 
which  this  Commission  is  uiven  jurisdiction  in  this 
in(|uiry. 

The  subject-matter  of  that  findinji' — to  whicli  apt 
relative  words  and  repetitions  refer  thron^^hout  the 
finding,  article  by  article — is  stated  in  No.  1  of  the 
Findings  of  Facts,  and  is  this: 

Tlieso  sovcral  searches  and  seizures,  wiietlier  of  slii])s  or 
pMxls,  iiiul  the  several  arrests  of  masters  and  crews,  respec- 
tively, iiieiitioiied  in  the  scukditlk  to  the  Hritish  case,  /*/».  7 
ti)  (id,  iiirliiKirc,  etc. 

Thus,  throujihoiit  err///  /iiinif)r((i)li  ol  the  fiii(hni;'s. 
ill  eacii  one  continuin;^'.  as  in  Fiiidiiij>'  1.     Thus  in — 

1.  (d)  (Questions  as  to  the  v.alue  of  "the  SAIK  vessels 
or  their  contents,  or  either  of  them,  and  the  (piestioli 
as  to  wiiether  the  vessels  mentione(l  in  the  srUI'.DIM.K 
to  tlie  Hritish  case,  or  an\  of  them,  were  wholK' or  in 
part  the  actual  |M'o|iert\-  of  citizens,"  etc. 

(//)  it  beiiiL;-  understood  that  it  is  "open  to  the 
Fniteil  States  to  raise  these  (piestioiis  or  an\-  of  them 


INTKHPUETATION    ANU    SeO':'K    Ol'    THK    CONVKNTION. 


;5") 


it'  tlicy  tliiiik  lit  in  any  t'utiiiv  iicji'ttliiit'ons  as  to  tlic 
■  iaUility  of  tlic  I'liitt'il  States  ( lovcrninciit  to  pay  thk 

AMOUNTS  MENTIONKD  IN  THE  SCHK1)UI-K  To  THE   HKITISH 

CASE." 

2.  That  the  '"sEizinnvS  aforesaid,"  with  tlic  oxccp- 
tionotthf  I'((lli/iii(lrr  si-\/A'(l  at  Ncah  Hay,  wcri' niaih', 
etc. 

3.  ((()  "  That  ihi' saik  scNcral  searches  and  seiznres 
of  vessels  were  niatk»  hy  iiulthc  arineil  vessels  of  the 
United  States,"  etc. 

(/>)  '"'rhat  tlie  alh'^ied  acts  or  otVenses  for  which 
SAIP  SEVERAL  si'arches  and  seizures  were  niaih-  were 
in  each  case  (l(»ne  (tr  coimnitteii,"  I'tc. 

(r)  "Tliaf  tlie  sAii>  tines  and  iniprisonnients  were 
for  alU'jiccl  l)reaches  of  the  niiniicipal  hiws  of  the 
Tnited  States,"  etc.  (No  refereu<'e  to  "lines  and 
iiii|trisoinuents"  ajipears  anywhere  except  Itetweeu 
pa^'es  1  to  (!0,  inchisixc,  of  tlie  British  case.) 

4.  N't*  reference  to  the  sul)ject-Miatter. 

;").  "That  the  district  courts  of  the  rnited  States 
in  which  anv  proceedinjis  were  hail  or  tak«'n  for  the 
purpose  of  condenniinj:'  any  vessel  .seized  as  men- 
tioned IN  THE  SCllEDUI.K  TO  THE  i'ASE  OF  (  i  KEAT  UuiT- 
ain  (pi'.  1  To  (!(),  inclusive)  had  all  the  jurisdictions 
and  powers  <tf  courts  of  aduiiraltx',  including-  the  prize 
jurisdiction,"  etc. 

it  follows  that,  as  to  evervthiuj:'  exce)tl  "Additional 
claims,"  the  convention  of  IH'.Xi  confers  jin-isiliction 
upon  the  ( 'onunissioners  for  three  purposes  only : 

(1)  'i'o  determine  the  amount  of  each  claim  ap|iear- 
iuii'  hy  the  iii'itish  .schedule  (pp.  1  to  (10,  iuclnsive), 
tlu'  amount  liein^z'  the  (piestion  on  which  the  lindinji' 
in  express  terms  declined  to  pass. 

(2)  To  determine  as  to  the  liahility  of  the  rniteil 
States  on  account  of  "each"  claim  of  each  jterson  for 
injuries,  as  set  down  in  the  British  schedule  (pp.  1  to 
(>(),  inclusive). 


■  M 

i 


i 


36  INTERPRKTATION   ANU   SCOPE   OF    THE   CONVENTION. 

(3)  '!'(»  lU'teiniiiic  tlu;  ([Ucstioii  of  liability  of  the 
United  States  which  might  be  raised  on  aceount  of 
"whether  the  vessels  nieiitioned  in  the  sehediile" 
(pp.  1  to  (>(),  inclusive),  or  any  of  them,  were  wludly 
or  in  part  the  actual  j»roiterty  of  citizens  of  the  United 
States. 

Findinji-  i,  hist  parajiraph,  clearly  points  out  that 
the  (piestion  tor  the  future  ne;>()tiations  of  the  ( Jovern- 
ments  is  onlv  as  to  the  liability  of  tlu^  United  States 

"TO    I'AV    THE    AMOUNTS    MENTIONEO    IN    THE    SCHEUri.E 

TO  TUK  UiiiTisH  CASE."  Article  i{  of  the  ( 'ouventiou 
provides  that  the  Commissioners  shall  "hear"  only 
questions  of  fact  ''not  Jiiidid  bif  the  'J'rihiindl  of  Aih'i- 
frafioii,"  and,  of  course,  to  ascertain  what  was  found, 
and  what  is  therefore  excluded  from  the  co<>nizance 
of  the  Conmiissioners,  can  only  be  ascertained  l»y 
the  lindin<>s  themselves,  here  aj-ain,  referred  to  as  a 
part  of  the  ( "ouventiou,  as  has  been  seen. 

The  »daims,  then,  referred  by  the  Convention,  are 
HO  part  of  them,  claims  of  vessels,  but  are  "claims" 
on  account  of  "persons,"  "arising"  by  the  treaty, 
the  award,  AND  the  tindin<is  of  fact.  The  word 
"arise,"  in  ]>ointing'  the  way  to  the  description  of  the 
particuliir  claims  ti>  be  referred,  as  used  in  Article  I 
of  the  Convention,  is  clearly  used  in  the  sense  of 
"li!iviii<i-  their  orig-inals,"  "presenting-  themselves," 
"ai)pearing'  from."* 

The  only  other  sense  in  which  the  term  can  be 
used  in  connection  with  the  context  would  Ix-  tiiat  of 
"cause"  or  "creation,"  which  would  give  to  the  sen- 
tence the  meaning-  that  the  claims  for  injuries  were 
caused  or  created  l»y  the  treaty,  the  award,  and  find- 
ings, which  of  course  would  Ite  absurd. 

These  cluims  are  of  persons,  as  ascertaine<l  by  the 
findings,  b\  the  sdiedide  (pp.  1  to  (id,  inclusive),  and 
l)v  the  convention  of  1  SIMI, 


"  Latlmiii's  .Idliiisiin's   I  lictioiiiirv,   "  Arise, "  'A;  ("iiilit)'.s  SviidiiviiiH,  p. 
201;  Welwter.  ••.\iisr,"  J.  ' 


■f  :    \\\ 


INTKKPRKTATION    ANU   SCOPE   OF    THK    CONVENTION. 


37 


Clnimant  and  sworn  owuor. 


Schooner. 


(1)  William  Muiisie Caroleua. 


(!.')  .lames  Doiiylas  Warren    Thornton. 


Items  of  claim  witliout 
amonnts,  as  follows: 
"X'aliie     of    vessel, 
valne  of'ontlit,  insur 
aniH',  wajies  of  erew, 
l>assaf;e  of  erew,  pas 
sajte    of   mate,   jier- 
sonal  expenses,  lejial 
expenses,   estimated 
sealeatcli  for  ISSd.  to 
tal  claimed  by  owner 
with  interest  at  7  i)er 
cent  to  date  of  pay- 
ment." 

Similar  details. 


!:■ 


'!  ■■-  '{ 


Article  I  of  the  Convention  names  tlie  elaiuis  as 
"claims  on  acconnt  of  injnries  sustained  ])y  jicrsoi/s." 

Article  111  i)rovi(les  that  the  (Nnnmissioner  shall 
determine,  etc.,  in  respect  of  "each  claim,"  and 
"assess  the  comi»ensation  if  anv  to  be  i)aid  on  account 
tliereof." 

Article  Vlll  uses  this  lan<>iia<>e:  "The  amount 
awarded  to  Great  Britain  under  this  Convention  nn 
(icctiiint  of  (iii/f  chiiiiHdit  shall  Ihj  paid,"  etc. 

Turnin;^'  n(»\v  to  the  schedide  of  claims  of  persons 
presented  before  the  Paris  Tribunal,  foiuid  by  the 
iindinji',  anil  of  the  persons  who  presented  them  as 
claimants,  the  follo\vin<;-  is  tlu^  li.st  and  the  nature  of 
the  claim  of  each,  as  set  out  in  "schedule  (i)p.  1  to 
60,  inclusive)  of  the  British  ca.se." 

The  details  are  omitt«'d  of  the  several  items  that 
{•o  to  make  uj)  the  claims,  excei)t  in  one  case,  which 
is  used  for  illustration  of  every  other  claim.  The 
amounts  are  omitted  because  the  findin<>s  did  not 
pass  on  amounts,  an<l  their  assessment  was  referred, 
in  con.sequence,  to  the  Commi.ssioners  by  clause  .se<'oinl 
of  Article  111  of  the  Convention. 


■   '  '.1, . 

■■m 


mfi 


38 


interpri:tation  and  scope  of  the  convention. 


Claimant  and  sworn  owner. 

(3)  Oliiirles  Spring 

(4)  Charles  iSiniiig 

(.5)  Thomas  II.  Cooper 

(G)  Tliomas  I L  Cooper 

(7)  Tliomas  II.  Cooper 

•8)  Thomas  II.  Cooper 

(fl)  Gutmaii  v*t  Frank,  Giit- 

iiiau  as  the  owner, 
Frank  as  e(|ually  in- 
terested in  the  results 
of  the  sealing  voyage. 

(1(»)  .lames  J.  Cray 

(11)  (ieorge  Hyines 

(1-')  Charles  H.  Chirk ^ 

Hichard  Hall, 
William  .1.  (ioupel, 
Uaiis    Ilalgeson,  part- 
ners as  Hall,  (lOupel 
i^  Co. 

(13)  William  Mnnsie   ) 

Frederick  Carnic ) 

(U)  Kdjjar  Crowe  I'.aker  . .  "] 

Haiiiel  McLean ( 

h'osineCibson 

.loll II  C.  I'.lackett 

(l.'i)  Morris  Moss 

M(i)  .Morris  Moss 

(17)  John  M.Taylor ^ 

Sainiu'l  W.  liiu!knam  .  [ 

Itela  M.  I.awreiu'e ) 

( IS)  Charles  Spring;- 

( I!))  Victor  .lacobson 

(-(I)  William  Muusie 


Schooner, 


Onward Similar  details, 


Favourite 

W.  P.  Sayward  . 

Crace 

Anna  ISeck 

Dolphin 

Alfred  Adams . . 


Ada  . . . . 
Triumph 


Jiianita . 


Pathfinder 


Triumph  No.  2. . 
Black  Diamond. I 

i-iiy I 

Ariel I 


Kate  i 

Minnie i 

I'athtinder  (.sec-  ' 
ond  claim). 


Do. 
Do. 
Do. 
Do. 
Do. 
Do. 


Do. 
Do. 


Do. 


Do. 


Do. 

Do. 
Do. 

Do. 

Do. 
Do. 
Do. 


1.- 


i;  :     ill 


INTERPRETATION   AND   SCOPE   OF   THE   CONVENTION."  39 

The  claims  o/persoiia  other  than  owners  are  scheduled  us  follows: 


ClainiuntB. 


I 


NatiiTo  of  cliiiiii. 


David  Monroe ,  Master  of  Onward. . 

j 

Margotich Mate  of  Onward 

Hans  Guttornisen .   Muster  of  Thornton . 

Harry  Norman .Mate  of  Tliornton . . . 

Jaiues  Ogilvie  ....  Master  of  Oarolena. 

James  Black Mate  of  Carolena . . . 

Warren Master  of  Dolphin . . 

John  l{eill,v Mate  of  Doliihin 

George  I'.  Ferey . . .  Master  of  8ay  ward . . 

A.  1!.  Laing Mate  of  Sayward. . . 

Louis  Olsen Muster  Anna  ISeek . . 

Michael  Keefe Mate  Anna  Beck. . . 

W.  Petit Master  of  < irace 

(J.  A.  Lundberg. . .  Mate  of  Ada 


Hlegal  arrest  and  imprison 
ment. 

Do. 

Do. 

Do. 

Do. 

Do. 
Sufteriiigs  and  losses;  navi- 
gating  lour  vessels   Iroin 
I'nalaska  to  Sitka. 
Sniferings  and  losses. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 


No  claims  are  nia<le  in  hclialf  of  any  other  jjcrson. 
In  schedule  1  to  (10  in  flie  cases  of  Morris  M(»ss, 
"owner"  of  the  Lili/;  of  Hyrnes,  owner  of  the  Tii- 
7i)Hj)li,  and  of  Hucknani,  as  owner  of  the  Ariel,  and  in 
those  cases  only,  claims  are  set  nj)  in  <i'eneral  for  the 
crew  and  hunters,  but  only  for  their  share  in  the  esti- 
mated future  catch,  which,  in  tlie  details  <if  each  (»f 
tliose  daiuis,  uia<le  l»y  the  owner,  is  intliulril  in  flir 
ildiiii  of  the  (iiciirr,  tiiid  so  stated. 

Not  only  are  tiiere  no  other  persons  named  as 
claimants,  hut  tliere  are  no  other  claims  of  persons 
mentioned,  descrilu'd,  or  sufi'fi'ested  in  the  schedule  of 
claims  referred  to  this  ( "onunission,  or  in  anv  paper 
referred  to  or  connected  with  t'ither  the  treaty,  the 
award,  the  tindin<>sof  fact,  or  the  Convention,  lleiice, 
there  is  no  jurisdiction  of  such  claims,  which  are  pre- 
sented for  the  first  time,  in  the  whole  history  of  the 
sul)ject,  in  the  IWtish  ar<iument. 


Mir- 


mmm 


"f 


40  CLAIMANTS — BRITISH,  DOMICILED    IN   UNITED   STATES. 

A  "liimj)  sum"  tor  jiersous  in  g-eneral  not  iiained 
or  siiyofsti'd  in  the  schedule — tor  crews  and  others 
whose  names  are  not  mentioned  an}'where — will  n(^t 
do  un<ler  this  convention,  and  the  new  ))ositior  of 
Great  Britain  advanced  at  pajj^'e  56  of  the  argument 
can  not  be  maintiiined. 

This  brings  us  to  the  following"  }m>j)ositiou: 


Tlii'rc  an'  tiro  ddsscs  of  '^ persons"  (iiiioiif/  flirsi'  clnhit- 
aiif,'^,  irlio,  liji  flic  svtflril  nmJ  (ulJHdicnted  priiiciph's  of 
iiifrriKitioiiiil  liiir,  (I IT  not  ^'jirrsoiis  in  ir/iosr  hcliiilf 
(iiriif  Ihita'ni  IS  entitled  to  claim  conqiensation  from  the, 
United  Statesr 

These  are: 

(1)  ( )riginal  sul)jects  of  Great  Hritain  still  owing 
that  nation  a  ([ualified  allegiance  (in  respect  of  sov- 
ereignty and  certain  exterritoriid  laws),  Imt  who  by 
domicile  in  the  liiited  States,  without  naturalization, 
owt'  allegiance  to  the  sovereign  claims  of  the  United 
States  and  olx'diciice  to  their  numicii)al  laws. 

(■J)  Citizens  of  the  United  States,  alleged  to  have 
Ix'cu  domiciled  in  Great  Hritain,  who  had  not  become 
natui'alized  in  (ireat  Hritain,  l)iit  who  owed  allegiance 
to  the  I'nited  States,  obedience  to  the  jurisdiction 
asserted  by  the  authorities  of  its  sovereignty — execu- 
tive, legislative,  and  judicial — and  obedi«'nce  to  their 
exterritorial  laws. 

And  of  these  in  their  oriler. 


(ONK.) 

CLAIM.\.NTS     WHO     WKKK     OKIGIXAI.     lUUTISlI     KUIUKCTS, 
Iirr  DOMICILED  IN    iiii:   uxited  .statks. 

in  respect  of  some  of  the  schooners,  there  are  two 
owners  in  this  class,  as  to  one  of  whom  there  mav  bo 


!  ■* 


:      H 


CLAIMANTS HIUTISU,  IJOMICILKI)    IX    irMTKl)    STATES. 

(loiilit,  liut  ill  n'S|icct  of  ;ill  cliiiiiis  presented  in  lieluili' 


.f   77/ 


mil  IIS 


II.  ( 


iKifiir,  iis  I 


>\\ner,  tlie  tiict  of  his  doiii 


cile  ill  the  I'liited  Stiites  is  coiichisive  iiiijiiiist   them. 

'The  British  iU'^iiiiient  iissiiiiies  (p.  3S-31I),  iind 
es|ieciiilly  troiii  the  h'tter  <it"  Secretary  ( Jreshjiiii,  whicli 
is  tiiere  iiii)Mirted  into  tliis  case  tor  the  first  time,  that 
tlie  omission  ot"  the  words  "British  subjects,"  in  Artich- 
I  of  the  ( 'oincntioii,  as  deliiiinji'  tiiose  for  wlioiii 
(ireat  l>ritaiii  iiiiL'ht  |ireseiit  chiinis  under  the  ("onveii- 
tioii,  was  a  means  of  enlarjiemeiit  of  jurisdiction  rather 
than  of  limitation.  As  a  matter  of  tact,  that  (h'scrip- 
tion  was  ehminated,  tor  the  reason  that  its  use,  and 
the  similar  use  of  terms  ini|>ortiiiji'  the  orijiinal  citizeii- 
shiji  of  a  chiimant,  had  in  all  prior  ( "oiiveiitioiis  heeii 
productive  of  much  emharra.ssmeiit  to  the  Commis- 
sioners. 

K'unniiig  throuiih  the  |trocei'dini;s  of  the  .Mixed 
( 'oiiimissions  of  1  S,")3  and  1S71  it  will  he  seen  that 
claims  wi-re  coiistantK'  presented  in  l)ehalf  of  persons 
who  were  technically  IJritish  suitjects,  liecause  never 
natiirali/ed  in  this  country,  and  yet  who  had  estalj- 
lishe(l  leu;al  domiciles  in  the  Inited  States. 

The  same  ditliculty  had  arisen  under  all  tli<'  other 
Mixeil  ( "ommissioiis  which  ha\c  heeii  het'ore  referred 
to.  In  such  cases  it  was  insisteil  on  the  one  side  that 
such  a  description  ot'  persons  could  not  he  elimiuateii 
from  the  coiix'eiitioii,  altlioui;li  at  the  same  time  it 
would  lie  admitted  that  a  person  h'lsally  domiciled  in 
a  coniitr\'  at  the  time  his  claim  arose,  tlioiii;li  not 
naturalized,  could  not  recover  apiiiist  the  countr\'  of 
his  domicile,  liefore  such  commissions,  or  against  aii\" 
other  countrx .  1)\'  \  irtiie  of  his  original  citizeiisliip  of 
the  country  of  his  orii;iiial  allegiance 

I'mler   the    Mixed   ('oniinissioii   of  IS"),'!    the   term 

■■  Uritish  suliject"    was  in   such   case  eliminated  from 

the  convention.  l>y  construction,  1»\  the  British  iim|iire, 

liates.  in  the  l.diiidiif's  case:    the  umpire  holdiiii;'  that 

It  s II 


41 


•fTwmmimmmi 


42  CLAIMANTS — HKITI8II,  DOMICILKI)   IN    UNITED   STATES. 

tlu'  ti'i'iii  "  liritisli  siil»j(M't,"  iiltliou<4li  (•(•rrcctly  dt'scril)- 
iii<>'  the  |)i»liti('iil  status  ottlu'  cliiiiiiiiiit.was  not  intended 
l»v  the  ctrnvi'iitioii  of  ISAS  to  lueiiii  tliiit  a  Hritisli  siih- 
ject  domiciled,  tlioiiji'li  not  iiiituiidized,  in  Mexico,  and 
wlio  liad  thus  heconie  civilly  subject  to  the  laws  and 
the  sovereijiiity  of  that  country  in  its  foreinn  rela- 
tions with  countries  other  than  (Jreat  Britain,  could 
ni'ii'e  his  political  status,  of  orijj'inal  alle<iiance  to  (ireat 
Britain,  as  a  claimant  aj;'ainst  the  I'liited  States  for 
injuries  suH'ered  at  their  hands  in  Mexico. 

ruder  the  Mixed  ( 'onnnission  estahlished  hy  the 
treatN'  of  Washinjitoii  of  1S71,  and  which  linishe(l 
its  lahors  in  1(S74,  the  (|uestion  came  u|»  on  dennuTer 
of  the  I'nited  States  in  the  Barclay  case,  and  it  was 
thei-e  held  on  the  Itroad  <M)nferment  ou  the  ( 'onunis- 
siouers  of  jurisdiction  l)y  the  treaty  of  Washiujiton 
(it  a|»]ieariuf>'  lt\'  his  statement  ot'  claim  that  he  was 
a  resident  of  the  Tnited  States,  and  therefore  ilomi- 
cile(l  there)  that  the  demurrer  nuist  he  overruled  on 
the  uround  that  liarclav  was  a  "British  sui)ject" 
within  the  lau^uai;!'  of  the*  ("onveiition:  hut  in  that 
case  it  clearlv  aiipeared,  as  stron^K'  urL;ed  l)y  the 
Britisii  c(»unseK  in  point  III  of  his  hrief,  that  the 
claimant  Bar<-Ia\-  had,  while  domiciled  in  the  I'uiteil 
States,  lieen  as  "faithful  to  the  I'nited  States  as  any 
loyal  citizen,"  the  principle  l)eiu;i'  that  he  had  heen 
loyal  to  the  s()verei<iutv  of  his  domicile  and  ol)eyed 
its  nuMiicipal  laws.* 

In  consideration  of  these  ditliculties  under  )irior 
conmiissions,  therefore,  the  tVamei's  ot'  the  present 
('ouNcntiou  provided,  in  efVect,  that  the  claims  to  l)e 
presented  would  onl\'  i)i'  those  that  (ireat  Britain 
woidd  i»e  entitled  to  present  under  llie  rules  of  inter- 

*  Sco  ii')iort  by  1  liT  .Miijcs'  \  s  Ufjcnt.  of  I  lie  Mixed  ( 'iiiiiiiii.ssion ,  int'scntiil 
to  liiitli  Uniisi's  (if  I'.ii'liiiiiiiMit,  1K7I.  mill  piililislicil  in  riirliaiiiciitiiry 
l'ii]H'rs  miilci'  tilt'  tiflr  "  N'orlli  An. erica.  No.  2"  i  1S7I  i.  im.nt!  -H7. 


CLAIMANTS — lUUTISH,  DOMICILED    IN   UNITKD    STATES. 

iiiitioiiiil  liiw,  itinl  tlic  tcnn  "Hritisli  sultjccts,"  as 
(It'fiuiii^'  cljiiiiiiiiils,  wiis  omiftcd  l»y  ('.\|»n'ss  iiitciitioii. 
Tlierc  is  no  t|ii('sti(Hi  wliiiti'vcr  iis  to  Tlioniiis  II. 
Cooper  lijtvii!)^'  Ik-cii  <liiriii}i'  ;ill  tlic  itcriod  in  (|Uc'stion, 
find  ii|)  to  tlic  close  (»t  the  sitting'  of  this  connnission  jit 
\'ictoi"ifi,  Icfiiilly  (loMiiciled  in  the  I'nited  StJites.  The 
t'lH't  ot'  residence  in  New  York  iuid  Siin  Fnincisco 
tor  more  tluni  forty  yenrs  contiiniously  was  testified 
to  l)v  Warren  iUid  Itv  ( 'ooper.     (See  IJccord,  pp.  1140, 

I2t;7,  is'{(i-;',7.  !»-n,'  iir.i.) 

The  I'nited  States  did  not  choose  to  call  out  any- 
tliinii'  fai'ther  reji'ardinji'  the  nndonl)ted  fact  of  that 
residence,  and  (ireat  Hritain  did  not  seek  to  explain 
it.  It  was  found  hy  tiie  testimony  tiiat  Cooper  was 
a  married  man  and  had  resided  in  the  I'nited  States 
and  matle  his  home  at  San  Francisco  for  more  tiian 
thirty-live  years  continuously,  and  that  he  had  never 
heen  to  \  ictoria  hut  three  times,  and  then  only  for  a 
few  days  at  a  time  on  visits. 

It  is  universallv  held  that  residence  unexplaine(l  is 
conclusive  proof  of  domicile. 

Dicev  slates  the  rules  of  evidence  as  follows  (see 
hicev  on  "Conflict  of  Laws,"  Ana-rican  notes  hv 
.1.  I'..' .Moore,  1S!M;,  p.  i;{-_>): 

(I)  A  person's  presence  in  a  country  is  piesuniptivc  evi- 
dence (if  domicile. 

(U)  When  a  [mtsoii  is  known  to  Intve  had  ;i  domicile  in  a 
^iven  country,  he  is  presumed,  in  absence  of  proof  of  a 
elian{;e.  to  retain  such  domicile. 

(.'!)  Itesidcncc  in  a  country  is  jiriiiKt  fitcir  evidence  of  tlie 
intention  to  reside  tlieie  permanently  {(iiiiiiiiis  iiKitieinli).  and 
in  so  far  evidence  of  domicile. 

See  cases,  and  see  Sir  \\  .  Scoti,  so  often  (pioted  on 
this  suhject:  "Time  is  the  i^rand  ingredient  in  con- 
stitutinji' domicile."     (The  Harmony,  ISOO.  2  C.  Kol)., 


43 


S( 


'c  I  Mcey,  p.  137,  note.) 


"  U'esideiice    is   jtiiiiiti  ./f/r/'c  t'\  idiMice   of  domiciU', 
(Sir  Sherston  Maker's  llalleck,  Vol.  I.  p.  421.) 


mf^mm^ 


44  CLABrANTS — IlliiriSII,  DoMICILKl)    IN    INITKD   STATKs. 

I'liilliiiiort'  oil  Domicile,  jiiij;*'  14<!,  says: 

I'vciy  iiiiiii  is  viewed  hy  llie  law  of  nations  as  a  iiit'iiilier  of 
tlif  society  in  wiiieli  lie  is  Connd,  Hesidenee  is  prima  foric 
evidence  of  national  character,  susceptible,  however,  at  all 
times,  of  explanation.  If  it  l)e  tor  a  special  purpose  and 
transient  in  its  nature,  it  shall  not  destroy  the  original  or 
priiu'  national  character,  lint  if  it  be  taken  up  iiiiinio  iii<iiitii<li, 
then  it  heconics  a  dorui(Mle,  superadding;'  to  the  original  or 
prior  character  the  ri.i;hts  and  privilcjies,  us  in  II  us  t!ir  W/.sn- 
hililifs  iliitl  pi  imltiis  of  It  cilKcii,  II  HUltjvi't  of  tlic  roiliih'!/  in 


irliich  III 


I   risiilnirr  i 


is  rshihlisliril. 


tl 


(('itcil  ill  ;iri;iiiiifiits  witli    I  )r.  INiiUiiiioi'c  in  riidcs 
irt  ot'  derisions,  ( 'oiiniiission   lor  the  Set- 
linis   hetweeii    (irent    Uritiiiii    niiil   the 


ease,  in  repi 


eint 


nt    of  ("ii 


Tiiited  Stntes,  V.  S.,  ls5(i.  \>.  44,"».) 

To    tile   siinie   etl'ert    see   "I'lir   IikIkiii  Cliirf,"  K'ol). 
Adni.  l{e|iorts.  ."i-li*.  ;ind  colleetitiii  ot'  niithorities,  and 


leir  iin;il\sis   in 


iiowiiiij'    the 


1); 


inn 


lifit 


isll      jllK 


w 

1    A 


leiitoii,   see. 


'7 


.SYY, 


7- 


inericnn    iiiitlionties    in 


luirnioii\ 


111 


I   I 


>iiine\- 


veliort 


(ii.  ;U9) 


(loiiiieile  is  (U 


tilled 
d  witli 


iis  '•resiueiice  jit  ii  |inrtieii!iir  |diiee  iieeoni|iiinie( 
]tositi\('  or  iiresiini|)ti\  e  proof  of  eontinuinj:'  there  foi" 


iiii  uiiliiiiited  til 


lie 


Tl 


le  loiilciil   liosi 


tioiis  of  ( Jrent  Hritiiin  iis  to  ( 


oouer 


;ire  tin-se: 

(ii)  'V\\;\\  liis  o\vnei'slii|)  of  tlie  vessels  seized  imist 
lie  taken  as  eoiiehisiv c,  (In  tliis  vvc  fiilh  a^iree,  hut 
on  otjief  and  distinct  ^ironnds  from  those  taken  hv 
(Jreat  Britain.) 

{Ii)  That  alrhoiiuh  domiciletj  in  the  riiite(|  States 
since  l)o\  liood.  and  for  iiearh  half  a  ceiitiirx ,  hecause 


lie  was  not  iiatura 


lized. 


and  hecaiisi-  lie  was  an  oriiii- 


iial 


tin 


siiltject.    lie   con 


Id,    iiiidei'  the   iiiiinici|ial 
It  a  IJritish  reiiistrv  for 


laws  of  (ireat  Uritain,  take  oi 

his  ships,  and  ])iit  them  under  the  Uritish  tlau'. 

(r)  'I'liat  so  domiciled,  hv   virtue  of  such  ren'istiy 
and  tlaji'  alone,  in  direct  violation  (»f  the  muiiiciital  laws 


CI-.\IMANT8 — HIMTISII,   DO.MICIM'.l)    IN    IMTKD    STATEH.  45 

(it'tlii  llnitcil  Stiiti'sut' cxtfrritiirijil  t'urct',  mid  in  direct 
\iipliitioii  tit'  tlicir  criiniiiid  stiitiitcs,  idsu  ut'  cxtcrri- 
tdi'iid  furcc,  iiml  in  direct  detiiinee  tit'  tlie  niitinnsd 
cliiiiii  iiiid  iissertitin  t»t'  jurisdietitni  Dver  tlie  seidin;:' 
w  liters  i(t'  lieriii;;'  Seii  (ii  sovereij^n  cliiini  iiiiule  iiiitliiiri- 
tiitivfly  l)y  iill  tlie  l)ninelies  i»t'  tlie  <  J.iveniiiieiit)  lie 
fiilllil  semi  liis  N'essels  tt>  liike  sejils  iii  ijiiise  Wiitei's. 

('/)  Tlmt  etinciirreiitly  with  his,  tlie  vessels  ut' 
( 'iiti|ter',s  lu'ijihltttfs  in  Sim  Fninfiseii,  wIid  were  niitivf- 
htd'M  citizens  ttt'  the  rnitetl  Stiitfs.  |irtitecte(l  iiniiHU'e 
tiiiin  hiniselt'  liy  the  liiwsot'  the  Initeil  Stiites,  hiiviii^' 
lieeii  sent  1)\  theiii  ti)  tiike  seiils  in  the  siiine  wiitel's. 
iiiii\  Ite  seized  iiiid  ctinileiiinetl.  innler  thitse  liiws, 
while  lit  the  sinne  time  their  tiwners,  his  iiei^ihlturs 
iiiiil  t'ellt>w-citi/,ens  tit'  thirty-li\c  yeiirs,  witness  his 
llcets  ji'ii  iiiitl  ciiiiie,  iind  tiike  seiils  with  ini|uniity. 

('  )  'riiat  it'  in  these  circiiiMstiinces  the  liiitetl  Stiites 
eiit'tirceij  the  liiw  alike  iintl  with  e<|niil  Inintl  n|itin  the 
|prii|iei-t\  tit'  nil  their  citizens  tit'  Sun  Kranciscn,  he 
he  II  citizen  liy  thnnicile  tir  like  his  nei  rhhtirs  i>v  nii- 
tivit\'  tir  iiiitnridiziititin,  thiit  ('tMiper.  Ii,  reiistm  tit' his 
tiri^iiiid  |itilitic;d  idleyiniice  lUitl  hy  haxinii'  put  hi> 
vessels  in  a  Ih'itish  re^iistry  tinti  iinilei-  a  British  Hau'. 
is  a  perstin  mi  acctunit  ut'  whoiii.  ttir  these  neiialties 
that  he  has  siitVeretl,  and  while  still  retiiiniiiL;'  his  Anier- 
ican  dtiniicile.  <  ireat  Itritain  can  claim  ctim|iensatitin 
Irtim  the  Cniteil  States. 

\\  I'  atlirm  that  mi  sncli  nitinstrtms  ihictrine  can  lie 
tdlerated  I'tir  a  iiKinient. 

In  sncli  circmnstances  the  citizen  1»\-  dtiniicile  (t'nr 
tliat  is  wliiit  he  is)  can  tnit  lay  aside  his  character  as 
a  "natitmar"  ut"  the  I'niteil  States  whenever  he  sees 
tit  tti  ilet'y  the  same  stiverei^^iity  ami  the  same  laws 
that  pi'titect  him,  iiy  iissertinjj;'  his  tirij;iniil  ptilitical 
alleiiiance  ami  the  tact  that  he  has  mit  "tine  thrtuiyh 
the  t'tirm  of  niituralization. 

Mucli   less  can  he  call   U|)tin   the  ctiuntry    ut"  his 


46  CliAIMANI'H — nUITISII,  |H».\II(I1,KI>    IN    I  NlTKl)   STATKS. 

ori^'iiiiil  iiJIc^iiiMn-  to  iiiiikc  rccliiiiiatioii  tor  liiiii  ti<;'iiiiist 
tlic  iiiitidi)  lit'  liis  iictiiiil  iillf;>'iiiiicc  tor  wliiit  iic  llil^ 
sutVcnil  tor  violiitioii  ot   tlic  Inttcr's  liiws. 

\Vt'  (iiiotf  tVom  tlic  liiii;iii!i;i('  of  SciTctiirv  I'isli,  in 
liis  Iftt.T  to  Mr.  IJiicliill.T  of  April  s,  l,s74'(2  Wliiir- 
toil' 

Ir  wiiiihl  lit'  a  iiiiiii.strdiis  doctiiiie,  wliirli  tills  (iovci'iiiiiciit 
wiiulii  iiiit  toit'rat*-  lor  a  iiiiiini'iit,  that  a  <-ili/*-ii  nt'  tlio  I  'iiited 
States  will)  nii;i'lil  (Uhmii  liiinst'lt' inJiiriMl  liy  tiie  autliorities  ol' 
tlio  I'liitt'd  Siatt's  ((iiild.  Iiy  traiist'eiiiiiK  his  iilli'^jiniico  to 
aiKitlitT  powtT.  «'<inr(>r  iipun  that  jiowcr  th*>  ri^^ht  to  iiii|iiii'i' 
into  the  h'fjality  ot  the  procei'dinns  liy  which  lie  may  have 
Ix't'ii  iiijuri'tl  whilf  a  litl/eii. 


|)i^.,  sec.  '-'iri),  till'  iiriiifiplt'  iiivolvtM 


I'rott'ctitiii  can  not  lie  invoked  liv  domiciled  t 


or- 


ciiiiicrs,  except  for  discriiiiiiiiitioii  and  a;  liitrarx'  acts 
"as  distiii;;iiislied  from  penalties  ami  piinislmieiits 
inciiri'ed  li\  the  infraction  of  tlie  laws  of  tlie  coiinti\ 


within  whose   pin 

themselves." 

authorities.) 

.\nd  I  Kent, 
character." 


diet 


ion    the   siill'erers 


ive 


ilaceil 


(•_*  Wharton's  Di^'.,  .sec.  IHIt.  p.  4;i-l,  and 
rd:   "  Domicile  is  the  test  of  national 


Lord  Stowell  (I  hod.  .\dm..  p.  •_'-_'4,    Tlir  Am,): 

A  person  <l(iinicil(>il  in  another  country  is  to  he  taken  as  a 
salijeet  of  saeh  country.  *  *  *  Hr  run  not  lahc  Kilninlinic 
(if  bath  rhtiniclirs  nl  tlic  same  lime. 

Hlniitschli  (Int.  Law  codified,  sec.  3;>1): 

Certain  persons  may,  in  rare  iiistaiiei's,  ho  uialer  the  juris 
diction  of  two  diHereiit  States  or  evtMi  a  creator  numher  of 
Stales. 

Ill  iiixr  <i/  roil  /Nil  tlir  iin/milrr  irill  lir  i/irni  tii  thr  Sliitr  in 
irliirli  tlir  iiKlirithiiil  or  In  mil  ij  in  ijiirstiiiii  liiirr  llirir  iliiiiiirlli  ; 
their  ii;;hts  in  tiie  States  wliere  tliey  do  not  reside  will  he 
considered  as  suspended. 

Said  .Mr.  W'elister,  in  his  report  to  the  i'resideiit  of 
the  I'niteil  States  in  'riirasiier's  case  ((!  W'eli.  Works, 


;-:i23) 


pp. 

The  jieiieial  rule  of  the  pnhlic  law  is  that  every  per.son  of 
full  afie  has  ;i  ri}j;lit  to  change  his  doniicile,  and  it  follows 
that  when  he  removes  to  another  [ilaee  with  the  intention  to 


CLAIMANTH — HHITIMH,  nOMICII.KK   IN    fNlTKD   STATES. 

iiiiikt'  that  |iliic(«  liiH  iMM'iiiiiiMMit  i'(>Hiil*'iic(S(ir  Iiih  leHidtuice  lov 
Mil  iiidfliiiitt'  lu'iiod,  it  Ixh'oiiu'h  iiiHtuiitly  his  phicc  of  doiiii- 
cili',  •  *  *  It  is  \v«>il  known  thitt  liiiiKlriMls  (if  tli(tiiHaii<l.s 
iirpi'isoiis  uri'  now  liviiij;  in  tliix  country  who  liavo  not  Ik'cii 
iiatiiiali/fd  acrordin^  to  t\w  provisioiiHof  hiw,  nor  sworn  any 
;ille>;iuncc  to  tliis  (iovi'miiK'nt. 

Wliat  woidd  Im  tlie  (ioinlitioii  of  tliis  country  and  its  (iov 
I'i'iniM'iit  it'  tiic  sovereigns  of  I'liiropc,  fioiii  wlios<>  doiiiiiiionM 
liicy  liavc  ciiii^iratcd.  w(m<^  supjiosed  t<t  liavc  still  a  rinht  to 
liittM'posc  to  protect  such  inliahitants  against  the  penalties 
which  iiiinht  be  Justly  incurred  by  tlieiii  in  (;oiisei|iiciice  of 
their  violation  of  the  laws  of  the  liiited  Htates? 

Ill  i|iiestioiis  oil  this  siilijecl  the  chief  point  to  be  coiisid- 
cicii  is  t lie  ((;ii(H/(.v  mdiiiinll,  and  this  iniist  be  decided  by  rea- 
soiialile  rules  and  the  general  principles  of  evidence, 

■Mr.  Miircy,  Sccrctiirv  uf  State,  Sc|»tciiilK'i' iMi,  ls"),'{, 
ill  Kosztii  case,  fis  (|iiotc(l  in  •_'  Wliart.  IH;r--  ■^«'<"-  H"^. 
|,.  4h:>: 

Such  domiciled  citizen  •  *  •  is  under  the  bonds  of 
;ille};iaiice  to  tlu'  ciaintry  of  his  residence,  and  if  lie  breaks 
them,  incurs  the  same  penalties;  he  owes  tiie  same  obedience 
to  the  i'ivil  laws  and  must  discliaific  the  duties  they  iiiiiiose 
(III  liini. 

It  is  to  lie  iKitfd  tliJit  ill  the  Knszta  ciisc  the  rij;lit 
was  asserted  lt\-  tlie  I'liited  States  to  |iroteet  a  domi- 
ciled jiersoii,  iiltlioii^'li  iiiiiiatiiriili/ed,  (tiin'nist  mri/ 
iKilhiii  v.rri/if  IIk  iiiiIioii  uf  li'ix  diif/iiidl  liliiiiis/tl/).*  ( See 
id.,  |..  riO.").) 

See  also  .Marsliirll,  ( '.  .1  ,  in  Miii'ray  r.  ('IkiiiiiIih/ 
llrl.sri/  (■_*  Craneli,  ji.  ilMi);  Carlisle  r.  I'liited  States 
(K;  Willi.,  p.  147). 

Wharton,  in  his  ( 'riniinal  Law  ^Stli  edition,  see. 
■_'(i!l-L*sl ),  (niotes  I'liilliniore  to  the  |ioint  that  a  man 
can  have  only  one  allejiiaiiee,  and  proceeds: 

lint  1  must  aijree  with  HelVter  in  holding;'  that  a  mere  resi- 
dent in  a  State  owes  for  the  time  beiii^  ailcfiiance  to  such 
State,  and  may  be  }i|iiity  of  treasiui  to  such  State  if  as  a 


47 


'I'llis    llistilK'til 


II  Ih  Mot  ill  |i 


lint  lure,  liiit.  attiMitioii  is  cuIIimI  to  it  In 


iinnoilioii  with  thr  i|Mi'sti(>ii  of  orifiiiiiil  allt'ginnci',  coiisiilrrtKl  hitcr. 
Ilt'ic  the  rnitcd  Si  airs  is  not  iiHsciliiii;  the  ri^lit  to  pidtoct  t'ooiici'  lor 
Illation  of  till'  lawH  of  (Irrat  Uri  tain,  but  is  ilfii.vinii  tlif  rifjlil  of  (ireat 


liritiiin   to  iirotc'cl  (dopor  in  liis  (Ifliiim 
lion  <if  till'  laws  of  tin'  Initcd  States. 


the  soverei},'nt.v  and  violii 


^m 


48 


CLAIMANT^ 


-luurisii,  uomicim:i)  ix  i'mtki)  statks. 


luivali'  iKMS(ii\  lie  \viij;t's  w.iv  ajjiiinst  it  i>i'  icihIcis  conirorl 

to   its  I'lKMllicS, 

Colibi'tt.  I'nr  instiMK'c,  when  in  tlio  tnit('<l  Stiitcs  wns 
never  niituraii/.ed.  nor  did  lie  e\cr  lestrain  liiinsell'  I'loin 
deelaiinj;-  that  he  was  and  {ontinncd  to  be  a  I'.rillsli  snbjeel, 
yet  no  one  woidd  liave  pretended  tliat  Cobbetl.  while  residing; 
in  the  I  nited  States,  wa.s  not  liabh' to  lie  indieted  ioi'  all 
olVeiises.  political  or  otherwise,  made  indictable  in  tlie  place 
of  his  lesidence,  and  the  same  position  has  been,  as  we  have 
seen,  taken  by  the  Kritish  (lovernnient  in  respect  tociti/eiis 
of  the  I'liited  Stales  who  when  residinu' in  Ireland  have  been 


I'n.uancd  in  conspiracies  aj;ains 


t  the  lliitish  (io\ei'nment. 


\-  .j 


ic  closes  with  tliis  (|ii(it;iti(iii  ti'oi 


iilliiniM'c 


All  strangers  eoiiiinoiiint  in  a  land  owe  obedience,  as  sub- 
jects for  the  time  beiiiy,  to  thi'  laws  of  it. 


It    IS   Uiit    llcecssiirx    tn   cil  IZrlis|ii|i   tl 


the 


Idiiii- 


cilcil  iiili.-iliilaiit  siiiiiild  liii\r  the  nti'li;  tn  Mitf  nr  Indil 
|Miliiic;il  otlicc;"  ami  iiiidcr  all  llic  iiiillnn'ilics,  w  itlmiit 
cxccptiuii,  a   iKTsiiii  so    (loiiiicilialcil   owes    ci\il    ami 


nnlitic 


allcLiiaiicc    to   the 


local 


-o\  crcmiitw 


(! 


.Imliic  IJoai-  ill  ( 'oiiiiiiissioii.   ISTI.  lu-n<.i't  of   jlritisli 


Ai 


cut. 


so 


Ai 


)pciiili\  (i: 


\Ciiicc."L'  Willi.,  27  1; 


IN-tcflioir."  ."> 


\\ 


bd: 


Mis.   .\lc\amlrr's  ( 'ott 


oil. 


..   117: 

NCC.  (IS; 


.M 


CllUS 

orlc\ 


s  ( 'r. 
Int.  I. 


I\\,  sec 


<tor\  "s    (  'oil 

(is,'    MIS; 


int.    1. 


i\\ , 


II,  2;t;'.,  2:is-!i:  i. 


I  w,   (  1  < .  si'c.  '2'j::    <(C. 


rist  > 
li.ck's    lilt 
I--'.   i;<.  II: 


■2  I 


\('iit's  ( 'on 


<rc,  2:.. 


Ami  ill  iTtiirii  lie  is  (  ntitlnl  to  tin-  ri|ii;il  |irolcctioii 
of  tlif  lawsot'  that  so\cri'iL;n1  \  with  ollirr  ciii/.ciis, 
with  the  \i'r\  liiiiitcil  (|iialitic,itioii  tliat  the  local  so\ - 
criMLi'iitx'  can  not  inicrvciic  to  |irotcct  him  iVom  the 
coiisc(|iiciici's  ot'  his  in  traction  (d  the  so\crci;iiit\  or  of 
the  cMcrritorial  laws  oT  the  nation  of  his  orininjil 
allcuiaiicc. 


m 


(■  local  so\ci'ciuiit\  can  |irol('ct  him  ami  jirotcct 
his  |iro|ifrt\  ami  niaUc  reclamation  lor  liiiii  a^^aiii-l 
(■\  crv  other  nation,  excel  It  the  one  of  hi>  ori;;iiial  alle- 
iliaiH'e,  in   an\   i-ase;   ami    in  c.ise  (d    wai'.  e\ 


coiintrv  ol    Ins  on;^in 


ell  it    the 
le^iaiice    is    lielli^^crelit,  the 


n^ATMANTS iSWniSIi,    DOMICII.KI)    IN    I'MTEI)    8TATKS 

rdiiiiti'v  lit  Ilis  l(M';il  ;illcL;i;inc('  liciiiL;'  ncutriil,  iii;i\' 
iiitci'Nciic  to  )(rot('ct  liiiii  ;is  ;i  uciilrnl  ms  ;iu;iiiisf  tin- 
ciiiiiitrx'  ol  Ilis  (iri;^'iii;il  jillcii'ljincc:  Iml  umr,  cnii  in 
lliiil    <(lsi\   ij    III'  IhIs   Iii'cii   tfili/l//  III'  III/    III!    Imsli/r    In  tlir 

'  iiiii/fri/  III  Ilis  iirii/iiKil  iilli'iiiinirr.* 

W  hilt  v\'^]\t  of  pnifcctiitii  nr  rccliiiiiarioii  rciiuiiiis  to 
tlic  imtiidi  nf  (irij4'iui)l  Milcni.-iucc  ;i^;iiiist  the  ii;iti<iii 
III  iloiiiicilf  in  i'('S|)('ct  ><•  the  suhjcct  ol  the  tanner  so 
i|c.i;ii('ili;itcil  hilt  not  ii;itiir;ih/.c(l  in  tlic  Inttcr.' 

'rhcr<'  is  no  conHict  ol'  ;uitlioi-it\'  iii  iiil('rn;ition;il 
l,iu  on  this  suhjcct,  iUid  the  strictest  riih-  iiiijiinst  the 
(•(luiiiry  of  (hmiicih'  in  iMMtr  ol' ihc  ujition  of  oriuiniil 
;illci^i;incc  is  liiiil  (hiwti  ii\    I  l;ill  (see.  ST.  nil.  21 M -■_'!•'_'), 


49 


siiiijicis  iinii  Diiirr  i>iiniu'  imiiniiiiiiiK,  the  iirohrnon  ol  liic 
sliitc  iiikI  tlic  jlintii-r  ol'  till'  coiirls  sliiill  iir  iilfhrilril  riiHillljl.  illld 
tliiit  iM)iii|)i'iisiiti()ii  sliall  1)('  iiiiidi'  if  the  coiii'ts  iVoiii  rdi'iiip- 
lidii  or  iHt'JiHlit'c  or  otlier  like  iiaiiscs  arc  <iiiilty  ol' serious 
acts  ol'  injustice. 

Unitiilli/,  nil  jinsiDis  riiliriiii/  u  I'ltiiiijii  cinnifrii  iini.st  siiliiiiif 
III  lilt'  liiirs  (if  Ihiil  I'Diiiilnj.     "      '      ' 

lint  even  Ihill  (iniihlics  this  rnh'  jis  follows.  '1\^): 

\\  lien  tiie  siihjeet  of  a  state  is  not  merely  passiii}!'  tliroiigli 
ill  'ciiipoi'arily  resident  in  a  rortMfjn  I'oiiniry.  hiU  lias  hecoiiie 
(loiniciled  tlicrc.  Ilic  lijiiit  of  liis  state  to  protect  liiiii  issoinc- 
wiiai:  alVected. 

Hall  says  fnrthcr  that  the  inrisdictioii  of  the  state 
of  domicile  is  coinjilete  oxer  ton-ioners  who  are  aine- 
iialile  to  all  its  laws  (pji.  -JKI-:.'!'!  ). 

Orc:it  liritiiin  held  Ili.Mt  a  inTHdii  wlici  \v;is  .1  liritish  Niilijoct,  iIh'  son 
'■I  :i  liiilisli  I'litlifr.  hill  II  ill  I'laiiii'.  Init  Htill  a  Uriti-li  siili|rrt  li.v  tln'  laws 
111'  i;iiii;laiiil.  anil  taking  a  riiiiiiiiissiini  in  tin'  t'fi'iK'li  aiiiiy  in  a  war  with 
I  ii;;laiiil,  was  j;niltv()l'  lii};li  tvciixiii,  anil  lii' was  I'lmvicli'il.  iStilte 
liiaU.  W  lll.i 


w 


m^ 


50 


CLAIMANTS liKITISll,  DOMICILKl.)    IN    UMTi:i)    STATKS. 


Lord   \\'('srl)iir\-  sji\s  (in   I'diiv  /-.   I'din-,   L.  W.  !. 


II.  I. 


441): 


'I'lif  law  ol'  l".Mi;l;iii(l  1111(1  ol'  nil  (livili/ed  coiiiitiios  ascrilx's 
to  eiK'li  iiiiliviiliial  at  liis  hirtli  two  distimt  Ic^al  states  or 
('(imlitions,  oni"  by  \ii'tiit'  of  wliicli  lie  liecoines  tin-  siilticci  ot 
sonic  particular  coiiiitrv,  liiiuliti;,'  liiiii  by  the  tic  of  iialiual 
allcfi'iaricc.  and  wliicli  iiia.\'  be  called  Ills  political  status; 
aiiotiiei'  i)y  vii'tac  of  wiiicli  lie  lias  ascritu'd  to  him  the  char- 
acter of  a  citi/cii  of  some  particidar  country,  and  as  such  i^ 
]M)ssessed  of  certain  municipal  rif>'lils  and  subject  to  certain 
obligations,  which  latter  character  is  the  civil  status  or  con 
dition  of  the  indi\'idnal.  and  nniy  be  <|nito  ditl'erent  from  his 
l>oliti<-al  stains.  The  political  status  may  dejM'nd  tin  ditVerent 
liar 


ilifYcnitt  niiiiifrics^  irlitrcKs  tlx  i-iril  sliitiis  is  i/ori  '-iiiil 


11.1/   I'll 


iilir  KilK, 


lie  inhh-ijilr,  iKiiiii-li/,  that  (if  iln 


irliirli  ,'.v  till'  rvitiriiiil  rstillili.sllcil  lilj  lillC  Jiir  (III-  jnirjiDHi  <;/  ilcli 
III  ill!  Ill/  riril  .sill  I  Its. 


Hilt   this  siil)jc('t    will  lie  ('(itisii 
wlicii    we    (•(line    to    tlic    status   u 


licrcil 


ItU'l  I 


iiiiM'c  (!ircctl\' 
'•iti/.cii- 


l('"('il    til 


l\C      liccll     iloiuicllcil     111     \t', 


n 


{lilt) 


■II.  1)1).  ;) 


3-(;(i 


Tlic    cases   cite!    in    tlic    liritisli   aruiiiiU'iit 


^iiliicct  of  (idiiiicilc   (p.    .').■{),  serve    to    iljiistrat 


ntaiii 


oil    the 
e    the 


priiicii 


lie.  til 


■  >,  1 


t   was  (ieriiled:    (1  )    'I'lnit 


111    •_*    Kiiaii|i.   I'.  ( 
I  )riiiimioiiil   was    a    Uritisli   siiliject:    ('_*)   tliat   lie 
doiiiiciled   in    I'Vaiicc:    (,'{)    tliat  under  a  treat\    ji 


wa> 


\i(lin<! 


t.ir 


eoiniieiisation  li\'  the 


reiK 


h  ( 


ro- 


loxcriinieiit 


tor  josses  to    liritisli    snlijecis.  Dniiiiinoiid    could    not 


(■iaiiii  coiii|iensation  troiii  r  ranee  a 

liecaiise  ol'  liis  domicile  in  I'Vaiice 

Here   in    tliis  case  our   position^ 


lirit 


are  a> 


ish    sllli|ect 


U    (   'o(  11  Ml' 


jireciselv   the   >aiiic   as   there   liehl    as   to    I  )niniiiionil 
iiid  France,  thus:   (1  i   That  he  is  a  liritisli  siiliject  li\ 

(■1)    that    ill 


orminal    alleniaiici 


II. 


M'uniiiioiHl  \\a> 


till'    tune    ol     the    allcL;ed     lllinrx     lie    was    ijoliilelleii     III 


III  till 


\n:  ir|iurl  ( 1'  l\ii:lp|i.  I'.  <  '.  ,'il  I  will  In-  riilinil  nlniiliU   l.<)lilillt;> 


lM{ii:ill,v  Nti'dii;;  ii;,Miii>t  tlir   <  l.iiiii  in   lii'liiiH'  cil' ( 'iiii|ii'r.      In    l.< 


it  iK  lic'lil  tlial  II  •III  {Miiiitii 


l|MlSC'il    111'    liritisli     SIllljl'I'tH   I'XlHlillU 


t'iiii>i;.'ii  roiiiiti'V  li.\  till'  liitli'i'H  iissrnt    niii>t  lif  lii'lil  til  lii'  :i  I'liri'iKii  I  or 
|iiir.'itiiiii. 


CLAIMANTS — lUilTISIl.  DoMII'Il.r.li    IN    ITNITKD    STATES. 


51 


iiii' 


I'liitcd  Stntcs;    (,"'))   tliiil  umlcr  ;i  trriity  ])n>\  iiliiii;- 


iir  (■(iinpciisiitinii   tiir   iiiiurics   tn   ix 


I'sulis    Inr    wllulll 


(ifciit   l>i'it;nii  IS  ciititlcil  to  make  rcclaiiialiiui  ai^T'iisi 
the  Initril    States,  reclaiiiaticiii  eau   m.'    lie  made  t'ltr 


doner  liecaiise  iit    his  (lnmieile  ii 


(l< 


tiie  r 


liiit  tlie  adileil  nlijectiun  in  ( 
was  eiiLiati'ed  in  \  iolatiiii;'  tlie 
.■Mi\('rei;.;iit\   nt'  his  domieile. 


oojier  s  case    is 


iiited  State; 
tliat   1 


aw: 


ami   ilelNKi'i' 


iSiit  the  whole  (|iiestioii  as  to  aii\'  claimant  standiiiu 
('oojier  is  not  oid\'  concluded  aiiainst 


III  till' 


IOCS  ( 11 


tireat    iiritaiii 


1)V    III 


e  niles  ol    mteriialional  law  ,  lint 


h\     fh''    t 


reat\    lietwi'cn   the  nation 


.f  .liiK  ;i,  isi; 


as   lolloW; 


Tl 


ic  iiiliahitaiits  of  tiic  two  coinitrics,  rcsiicctixt'ly,  slial 


liavf  liberty  Iri'cly  and  sciaircly  to  ciunc  with  Micii  sliiiisaiid 
(■  irj;ocslo  ;ill  siicli  places,  ])orts,  and  rivers,  in  the  lenitorius 
al'oresaid,  to  which  other  l'orei;;iiers  are  |ieniiilled  to  conie, 
lo  enter  into  I  lie  saiiii',  and  to  niiKilii  <iiiil  l!i;sii)i',  in  any 
liarts  of  the  said  tenitmies,  i('s|)eeti\i'ly :  also  to  hire  and 
niciipy  lioiises  and  wari;li(nisps  for  the  |iiir|ios( 
iiKace:   a 


s  of  theii'eoni- 
lid,  lit'iieiiillv,  the  ineiehants  and   traders  ol' each 


nation,  respeelnei.v,  shall  enjoy  the  most  con 


iplete  protei'tioii 
:iiid  seemiiy  for  their  comiiierce,  uyv  st  r..ii'.(r  ALW■.V^STO 

niK  LAWS  AND  STAIITES  Ol'    I'lll'.    I  \VO  COT  NTItl  KS,  KKSl'KC- 

rivi';i,v. 


Ill   not   lie  seriollslv  colitende 


at  111  lielial 


her  snlijects  residnin'  in  the  I  mied  States  a>  iiro\  ided 
in  this  treatw  and  eiijox  ini;'  comiilete  prole  lion  and 
secnritv  III  theii-  laws,  lnit  snliject  to  their  laws  and 
-latiites.  as  |irii\iileil  ,-nid  >ti]iiilated  in  the  lreat\', 
tireat  liiitain  can  make  reclamalioii  mi  account  of 
aiiv  such  siili'iect  lor  injuries  siiriei-ed  at  the  hands 
of  the  I'nited  Stales  while  ill  tile  act  ol'  \  iolaliliu' 
iliose  laws  and  statutes,  more  e>|ieclall\-  when  siich 
-latntes  are  in  the  nature  ol'  regulations  of  trade  and 
commerce  of  exterritorial  effect.  direclK  a|i|ilicalile 
to  all  citi/.eiis  of  the  I'nited  Stales  e\cr\\vh,  .e  and 
■'all  jiersoiis." 


I'lcaticf*   .iiiil    ( 'oiiM'iitiiiiiH    IjriWL'i'ii   tlir    riillcil   Sliitrfl   mill   other 
I'ciwcrs  ( |>.  lie.  fit.  issni. 


mmmmm 


C'LAl.VANTS liiariMl.    lii).Ml(ILr.l)    IN    IMTKIJ    STATES. 


1 


11    piiiiit    iiinlcr   this    trc;it\'   is   tlic   oiiiiiidu  of  tin 


( 


(llllllllSMlill 


lor  tlic  scttlclllcllt   ut'  clilillis  l)Ct 


wccll  the 


I'liitcd  St;itcs  jiinl  ( iicnt   llritniii  iiinlcr  tlic  (•(Hi\cnt 
t'    In."),')  (|i]i.  ,'!,')(I-,'>.">7  ),  1111(1  iilso  citcil    in   Hiircl;! 


loll 


o 


CilSC   uiulci 


the  ( 


olUllllssloll   o 


1S71. 


I''iiuill\  .  ;is  to  the  (  'oo|icr  chiss  ot'  chiiiiis.  tlic  loLii 
cal  ]iositioii  of  ( ircat  liritiiiii  is: 

(")   'That   iimlcr  the  rules  of  iiitcriiatioiial  law  aiK 


the    ireatx 


Isjo    iniiiatii 


rali/,e(i 


Itritish    sill 


je.-l- 


lei;all\    iloinicileil  in  the  I'liited  States  are  eiilitled  ti 


tl 


ic   |irotcctioii    ot    the    laws    e(|iia 


11\    with   A 


iiKTicaii 


citizeii>:    liiir 


{!')  T\ 


ie\  arc  at  tlic  saiiic  time  c\ein|it  ami  pri\i- 
<l  from  the  clfeets  of  the  ojicratioii  and  cNccutioii 
of  the  law>  thai  protect  ihciii.  aii<l  thus  possess  the 
privilcLi'cs  and  protection  ot'  liotli  iiatioiialitics  and 
oliliizatioiis  of  oliediciice  to  iieitlier:  not  to  (Jrcat 
lin.  i)ecaii>c  licxoud  her  tcrritor\-  and  jurisdiction. 

tl 


es  iK'causc  tlic\'  ma\  (ianii 


i\ 


Jirit; 

and  not  to  the  I'nitcMl  Stati 

protection  atzaiiist  them  as  IJritisli  sultjccts. 

It  is  not  Iriie,  and  l''iore  enijiliaticjillv  deiioiiiK 
the  extension  ot'  such  protection  as  is  liei-c  claimcij  1 
(Ireat  llritain  in  this  class  of  cases  in  his  Xoiixcaii 
l>roit  international  I'liMic.  I.oi;!:  "The  protection 
is  illicit  and  iiiiiustilialile  when  its  ohject  is  to  confer 
a  pri\ilc;i-ed  po>itioii  upon  the  suhjccts  or  citizens 
(Nat 


lonauN  >  roiihn 


l;'  ahroail 


{   ooper  w 

ot    tlll-S(      \C>S( 


a-,  at  the  t 


line  lie  liecamc  tile  Ici^ai  owner 


and  at  the  time 


ol  tne  seizures  (iiioail 


the  I  lilted  ."smres.  and  m  their  relations  to  him  a^ 
auaiiist  (ireat  liiitain.  an  .\mericaii  citizen,  and  a- 
such  his  ship 


ill  > 


s  we  >iiall  see.  were  enntlcil  to  carr\ 


no  I 


la-  1 


lilt   that  ol    tl 


niieil    Mates,  and  were  w-  i 


evcii  ciititicij  to  hriU-ii  reui^trx . 

There  remaiii-  to  ln'coii-idered  in  cases  like(  'oopei'> 
tile  position  t.ikcii  ill  li.e  liriii-h  ar;^uinciit.  which,  we 
take  the  lilieri\   io  I'liM  i-\c,  >|i(inld  carrx  it^.  ow  n  rdii- 


Cl.AI.MANTs {  ITl/.KNS    Ol'    TlIK    INI'lED    STATKS. 


i)5 


(T\V(  ).) 


Till'.    CLAIMANTS    WHO    WKl.'K   (iWKllNAl-   CITIZl.Ns   OF   THE 

rMTKD  sTAiiis.  NAin  r.  i!oi;n  oi;  naitwali/.kh,  ai'  tiik 

TIMK  or    IIIK  Al.l.Klil'.n   IN.M'UIKS.  Itl    T  XO  T  AT    I'llAT    TIMK 

NArri;Ai,i/i;i>  in  (umiat  i;i."iiain  rNnr.i;  thk  natiijai,- 

I/.ATION  ri.'KATV  OI'  ISTII,  I.VKN"  IF  DOMICII-KD  IN  CK'KAT 
lil.'ri'AIN,  AUI.  N0|\  CNDKI;  this  CoNVKNIION.  I'KKSONS 
"IX  WIIOSK  llKll.MJ'  (MtKAT  MK'ITAIN  IS  KNTII'Ll-.l)  To 
CLAIM  COMI'KNSAl'ioN  FKOM  THE  CNITEI)  STATES." 


In  the  lirst  iiliicc,  tlic  liunl 


ell   IS  1 


iiioii  ( irciit  Fritiiiii 


t( 


liow  that  tlii 


iiiiiaiits  ai'( 


Slid 


I  ii('rsoii> 


am 


I  if  it       "I'l" 


were  true  thai   Ic^al    iloiiiicilf  would   ,ui\t'  tlinii  tlici 


AllSWi  T  til 


nct'(i( 


■d  status,  rill'  record   I'ails  to  disclose  tl 


i|iii'i-.Nii.  1, 


nroo 


j'     1  Or, 


(it    doinicnc  witiiiii   llic  rules  oi    evidence   in    interiia- 


rioiia 


1  h 


w. 


lint    conce(liim'   tor    tlie    |)iir|iose  of  this    ar^iiineiit 


that  tl 


lese  claniiaut-i 


had  a  .1 


OlUICl 


le  in  ( ireat   iJrit; 


nil. 


there  is  no  aiitliorit\  whatever  to  sustain  the  |iosirion 
lit  that  nation  that  it  can  in  their  hehalf.  in  the  condi- 
tions  here    iireseiited,   make    reclamation   iif/dii/st   the 


ration,  that  under  coincnrioiis  of  this  kind,  in  terms 
for  the  adjustment  of  |iri\ate  caims,  like  all  the  coii- 
scntiiins  on  claims  e\er  entered  into,  in  some  way  or 
other  "tln' tlaj;' and  the  reuistc  i'"  of  a  ship  are  to  carry 
not  iiuK'  con(dusi\-e  e\ideiice  of  the  natioiialitx  ot'  the 
(iwner  ill  the  .mmisc,  not  only  of  political  citizenshi|i 
hut  ot'  domicile,  and  are  also  to  carr\'  lliat  conclusive 
|iresumprioii.  nor  onl\'  oil  rlie  hi;^li  seas,  liiit  into  this 
inrernational  court. 

r»iit  as  this  aruiimeiit  applies  as  \v(dl  to  the  (daims 
presented  in  lielialf  of  .\merican  citizens,  iiati\c  Imrn 
and  naturali/ed,  allei^'eil  to  he  domiciled  in  (ireat 
liritain,  it  will  l)e  treated  umh-r  a  suhseipieiit  ca|ition. 
(See  pp.  (16  to  S,").j 


ti'S' 


'!*.  tit  M'q. 


^f 


mff 


54 


CLAIMANTS (  ITIZKXS    OK    Till-;    IJNITHl)    STATES. 


Uii'itctI  Shifcs,    nil 'fit   is  .s////  flicir  roiiiilr//  of  jui/itlcnl 

Illllfl'lltllCf. 

The  aiitlioritit's  iirc  nil  tlic  ntiicr  wax. 

I)ct'(irc  prdcciMliiio'  t(,  (•if(i  fliciii,  it  is  proposed  to 
l)rictly  iiniilyzc  the  autlioritics  cited  in  the  iJritish 
arjiUiiieiit,  conmieiiciiiii'  at  pauc  oO. 

{ii ,   Tile  citatinii  tVoiii  N'attel  is  the  perfectK' 


■iettled    liciu'fal     doctrine    that 


a    toreii:ii('r    | 


well 

lassiiii. 


tlir<iiiL:h  or  (loiiiiciled  m  a  coiiiitrx  sliall  \\v  secin'o 
tVoiu  iiijiir\  :  Imt.  ot' course,  the  point  is  not  discussed 
as  to  how  far  such  foreiuiicr  will  i)e  protected  as 
aL;aiust  his  own  countrx':  neither  is  the  principle  ve- 
teri'e(l  to  as  to  ol)e\in^'  the  laws  and  resjiectiiti;'  the 
so\('reii;u  (daims  ot' his  own  counti'w 

The  opinions  I'ited  iVoni  the  domestic  hodv  of  teiu- 
l)orarv  coinniissioners  ajipointeil  l)v  the  I'lnted  .States 


to  (listnhute  the  award  toi'  the 


Alal 


lania  cianns  ai'e  not 


usually  held  to  lie  autliontatn c  \\\  an\  court.  1  heir 
law  ot'  deci-ion  was  statutory  and  wholl\  inunicipal. 
.Many  ot'  thosi-  opinions  are  adverse  to  the  liritish 
positions  on  many  points,  Imt  we  shall  not  cite  them 
on  our  side,  iiecause  they  are  not  e\idence  of  the 
lilies  of  international  law  as  ludd  1)\-  an\'  nation,  not 

e\Cll     thi 
( 


I'liited    States,      liiit    the   (jiiotation    from 
oiiimissi<iiier  IJaxiiei's  decision  is  cited  in  the  Hritisli 


arii-iimeiit.  troiii    tlie   case   ot 


West   r.  I'nir 


ed    State 


No.  1)1. 


where,  after  citiiiu  the  ticiieral  principle  froii 


\  atttd  (as  cited  in  the  opposing;-  liriet'  here),  the  com- 
iiiiissioiier  li'oes  on  to  state  the  application  of  tlie  rule 
to   t'orei^iiiers   resident  in   l-luLi'land,  as  there  tpioted: 


out  It  was  not  asserted   iii 


that 


oiiiiiioii  that  the  rii/'lit 


ot'  protection  of  the  coiinti'\'  ot'  domicile  a^iainst  the 
country  of  pcditical  alle;^iaiice  wiudd  e,\tc!id  to  cnses 
where    the    injuries   to    the   domiciliated    person    had 


resu 


Ited  f 


roiii  a  iliriM 


t  violation  of  the  laws  a 


ml  so\'- 

ereili•Mr^    of  the  coiuiti'v  of  ori<^'iiial    polirical    allei^i- 
ance.      liidicetl.  the  statement  in  that  opinion,  reterrim; 


CLAIMANTS CITIZKNS    OK    THE    UMTKl)    STATES. 


o;j 


to  the  riji'lit  of  |ii'ot('ctioii  "iis  iijiiiiiist  tlu'  liiiul  of  his 
nativity,"  rcfcrrccl  only  to  the  jicrsoii,  and  then,  as 
the  next  lint'  states  (not  (piotcd  in  tla-  Britisii  ar^u- 
nu-nt),  "this  |»i'(itcction  innrcs  only  so  lonj:'  as  he 
is  within  tlic  pale  of  iicr  jurisdiction. "  And  a^ain: 
*  *  *  "  i?ut  as  lon^-  as  he*  remains  on  tlu-  soil  of 
the  deek  of  a  shi|i  of  the  Hritish  ( lo\ei'niiient  he 
may  ri<ihtfnllv  elaim  ])roteetioii.'" 

'riie  eonnnissioner  cites  Kent  as  to  the  conditions  in 
time  of  wai'  as  to  alien  enemies  and  their  riji'ht  to  pro- 
tection, l)nt  as  it  was  unnecessary  to  the  decision  the 
\  'iirned  cdnnnissioner  did  not  cite  this  ([ualihcation 
t'ven  as  of  a  time  of  war  from  Kent  (1  Kent,  7<!): 

After  statin;^'  that  "domicile  is  the  test  of  national 
character,"  he  jn'oes  on  to  say  that  the  limitation  (in 
time  of  wiuO  u|)on  the  in-inciple  of  determining'  char- 
acter from  residence  is  that  the  domiciled  person  so 
f<tr  as  rcf/ards  his  oini  coiintri)  (i.  e.,  the  country  of 
oriji'inal  allegiance)  ")««.s/  i/nt  tal;c  up  (inns  iitiaiiisf  it."'' 

However,  the  statement  (juoted  from  Coimnissioner 
Kavner  in  the  opposin;^'  l)rief  was  not  essential  to  the 
decision,  for  when  he  came  to  that  he  held  that  Hrit- 
ish  subjects,  although  lejially  domiciled  in  the  United 
States,  wei'e  //"/  entitled  to  any  jtart  of  the  fund  fur- 
nished 1)\-  (Jreat  liritain  tor  the  indenmit\'  of  |)ei'soiis 
within  the  jirotectioii  of  the  l'nite<l  States. 

Tlu'  reasoning  liiat  follows,  in  the  connnis.  iouer's 
opinion,  and  which  is  adverted  to  in  the  Kritish  ai-u'u- 
meiit.  is  ill  considcrc(l  and  was  not  the  true  doctrine, 
as  we  shall  sec. 

(/')  The  second  (jUotatioii  (on  paii'e  ol)  is  from  the 
same  opinion  in  the  same  case,  and  the  last  paraj^raph 
{|Uoted  is  not  reasoned  in  the  lijiht  of  the  authorities 
oil  international  law. 

It  will  lie  seen  that  in  aiiv  case,  under  international 
law,  Itefore  commissioners  under  an\  convention,  that 
if  a  claim  were  presented  in  liehall'  of  a  Uritish  suli- 


m 


iUt 


-^ 


56 


Cl.AI.MANTs — CITI/ENS    Ol"    TIIK    UNI'l'KD    STATKS. 


jt'ct,  iiiiiiiitiinilizcd  ill  the  I'liifiMl  Stiitcs  l)iit  (l(iiiiicilc(| 
tliciv,  sucli  cliiini  rcstiui;'  uii  injuries  siistiiiiH'(|  wiiilc 
violiitiiiLi'  tilt'  exterritorial  l;n\s  and  soxcrei^iiitx"  of 
Great   IJritaiii,  as  well  as  in  the  case  stated  hv  Coin- 


lllissln 


iier   Kavner,   where  he  assiinies  that  the   Al; 


l)aiiia  ehiiiiis  were  allnwed  ai^ainst  tliat  nation  lor 
ne:^lect  1o  execute  her  own  laws,  the  same  answer 
which  he  there  puts  in  the  nioiith  ot'  that  nation  would 
i)e  retiiriie(l,  \i/.: 

Tliat  IS  my  iill'iiir.     1  am  liiUy  cniiipetciit  to  to  take  care  of 
iiiv  own  siil)ji'cts. 


1)111  that  ( ioveriniieiit  would  add  also  to  the  I'liiti 
tes  in  a  case  like  the  |ireseiit,  were  their  posit 


.^ta 


re\  crsed 


ion? 


The  policy  ot'  international  law  will  not  jierniit  \ou 
to  iiial<e  reclaination  tVoin  me,  or  to  protect  m\-  suh- 
jects  lor  a  violation  of  ni\-  laws  that  hind  them,  or 
lor  reliellioiis  detiaiice  ot'  my  sorverei^n  aiitliorit\' 
over  a  territory  which  1  claim — inul  anr  irlthli  //iiii 
<l(i  not  iht'nti — excliisi\-e  jurisdiction. 

(r)    'lite  1 11(1  tint  ('It if/'. 

Ill  that  case  the  person  had  iie\cr  li\C(l  in  America 
alter  it  liecame  a  nation  (not  alter  1773).  In  addi- 
tion, the  decision  was  directh' coutrarv  to  that  stated 
in  the  text  ol'  the  opposini;-  ari!iimeiit,  to  wit:  It  was 
that  the  owner  had  lost  the  l)eiielit  of  his  native 
AiiK'ricaii    (diaracter,   if  he   ever   had   aii\-,   which   he 


had   not.     TI 


lis   was 


not  a   case   where    the    oriii'iial 


citizen  of  one  country,  domiciled  in  another,  was 
niakinn'  a  (daiin  through  the  country  of  his  domicilia- 
tion auainst  the  countr\'  of  his  original  allegiance. 


'/)    The  case  of   'llif  I'ns'tdctit 


was  a  claim  niaile  in 


hidialf  of  an  American  citizen  domiciled  at  the  ('ajii 
ope,    a    coloii\    of    Holland,    with    wliicl 


>f  ( 


I! 


ot     I lood 

nation  I'jiiijaiid  was  at  w.ir. 


ma 


ke  is  that  tl 


lie  only  commeni  we 
lis  was  not  a  case  where  an  American 


citi/Ceii,  iiunatiirali/.eil  aliroad  and  owiny' ori<;Miial  alle- 


h  '    'I 


CLAIMANTS riTIZENS    or    THE    IIMTKD    STATES. 


57 


liiiiiicc  to  the  I'liitcd  Stiitcs,  wms  iiinkiii<i'  ii  cliiiin 
iijiiiiiist  the  coimti'v  of  liis  orijiiiifil  jillcfiiMncc. 

(r)  III  tlic  ciisc  of  tlif  Mdlrli/rxs,  w  Hrilisli  siihjcct 
\V!is  (loiiiicilcd  ill  l^ostoii.  iiiid  it  is  n  cmsc  stroiijily  in 
point  for  tlic  I'liitcil  Stiitcs  hi'forc  this  ( "oininissioii 
in  tlic  ciisc  of  tlic  claiiiiiint  ( 'oopcr. 

It  turned  upon  the  liiw  ii|i|)liciil)lc  to  domicile  for 
lucrciintilc  Jiiid  tnidc  i»iirposcs,  jind  wms  fornn  ii11c,u»m1 
\ioliition  of  the  second  section  of  tiic  nii\i,niiti<»ii  hiw  s 
of  ( ircMt  Ih'itiiin,  to  wit: 

No  alien  shall  exercise  tlie  tiiide  or  oecupiition  of  a  tactor 
in  the  ])liiiitiitioiis. 

The  case  is  clciirly  not  to  the  point  citcil.  it  is  not 
ii  cliiiiii  for  indciiinity  i'or  injuries  suffered  from  violat- 
ing' the  laws  ni'  MiiLiiand  applying;'  to  liritish  sulijccts, 
and  is  very  far  from  an  authority  to  the  etfect  that 
tlic  coiiiitr\-  of  his  domicile,  the  (nited  States,  could 
make  rcidamation  ayainst  (ireat  Britain  for  the  in- 
juries so  sulfereil. 

(,/')  This  is  Drnmmoiid's  case  (•_'  Kiiapp)  disciissi'd 

slipi'll. 

We  repeat,  if  it  were'  a  case  where  France,  because 
(if  l)riimmond's  domicile,  (daimeil  the  ri;i'lit  to  protect 
him  and  reclamation  for  him  from  (ireat  Britain  for 
injuries  suH'crcii  while  violatinj>'  (ireat  Britain's  laws, 
and  (daim  of  jurisdiction,  tlu^  case  would  he  in  ])oiiit. 

But  takinji'  this  case  for  illustration  of  the  whole 
class  offered,  let  us  carry  it  a  step  further  and  it  will 
be  seen  how  misleadinji'  it  is  to  cite  cases  "■cnerall\- 
to  a  point  wliitdi  is  not  covered  or  approache<l  in  their 
consideration  or  decision. 

Suppose  instead  of  a  treaty  providiii"'  for  re(daiiia- 
tion  by  BritisI/  subjects  iii/<iii/.sf  Fraiicc  it  had  been  a 
treaty  providing''  for  rechiniation  for  injuries  sujthcd 
liif  ciril  snltjccfs  of  Fraticc  in  o'euoral  ap'ainst  (ireat 
Britain,  iiududin{>-  (hiiiiiciliated  persons,  in  certain 
waters  claimed  by  the  British  sovereign  as  jiirisdi(!- 

B  s 8 


41 


i,: 


Tt 

Mf 


■■p 


5H 


CLAIMANTS — CITIZENS   OK   THE    LTNITED   STATES. 


tioiiiil  iit  tlif  time  of  tlic  injuries;  iissumc  tliat  iictsuf 
I'lirliiiiiit'iir  iiJid  Ix'cii  pfisscd  t'orhiddiiijiiiiKlcr  pfiifdtics 
idl  |)crs()iis  troll  I  iloiii;^cfrtiiiii  nets  in  those  Uiitcrs/iiiid 
tliiit  ill  |iiirsii;iiic<'  (it'  tile  iiiw  the  s(i\-ereii;ii  iillthoritv 
ot'(ireiit  Uritiiiii  (•(iiimiitted  the  injuries  e(iiii|diiiiied 
of:  and.  linidix ,  assinne  tiiat  the  ease  het'ore  tlie  court 
liad  l)eeii  whether  I  )riiiniiiond.  thoiiyli  a  Hritisli  sidi- 
jeet,  lieeaiise  (if  his  (hanieih'  ill  I'Vanee  e( add  throiijiii 
Kraiiee  make  reeliunatioii  from  (ireat  Britain  tor  the 
hiss  dl'  his  \csscls  whih'  xiohttiiij:'  the  elaim  of  juris- 
diction and  the  |ieiiai  hiws  of  his  own  country. 

It  is  (il(\i(His  tiiat  tile  deeisi(ai  must  ha\c  lieeii 
aiiiiiiist  tlie  British  sidiject,  liowcNcr  hniL;'  domiciled 
ill  France. 

(//)  'I'he  ('oiintess  (if  ('(Hiway's  ( 'ase  was  a  (daiiii 
for  coinjiensatidn  aiiaiiist  l''rance.  under  the  same 
treatv  as  in  Drummond'.s  case  (2  Kiia)i|»,  l\(>~t).  The 
('oiintess  was  not  a  British  siiliject,  nor  domiciled 
there,  and  if  she  luul  Iteeii  it  did  not  a)i|iear  that  the 
claim  wast'oi'  injuries  siistaineil  iiy  liei' while  en,i;a,iicd 
ill  hostile  acts  ai:ainst  I'Vance  (the  c(iuntr\'  of  her 
oriii'inal  alle<iiance),  (ir  in  \  idhjtin;:' the  laws  (if  KraMce 
aiiplyiiifi!'  to  her, 

'//)  in  Li\iniistoii  /'.  .Maryland  Company  (7 
('raiicii).  decisidu  li\  Storw  .1.,  is  stroniily  aiiiiinst 
the  iiositioii  of  (ireat  Britain  in  cases  like  that  of 
("oo|ier.  It  is  not  a  decisinn,  however,  liearinii'  at  all 
upon    the  (luestion    here.      It  was  iidt  a  claim    made 


'At  <ini'  tiiiit)  (Irviit  liiitain  cliiiiiicil  as  .jurisdictional  "the  waters 
within  lines  drawn  tnmi  hcailhind  tn  headland,  as  from  Orforducss  to 
tlie  rorcland.  and  from  licachi'v  Head  to  lliinnoNe  I'oiiit"  (Hall,  Int. 
].aw.  )i.  Idli).  "A  recent  (l<Misiiin  otthe  I'rivy  t'oiiiicil  has  .itlirnied  her 
.jurisdiction  over  the  lia.v  of  ('oiico|ition  in  Newfonndland,  wliicdi  )icne- 
trates  Ibrt.v  miles  into  the  land,  and  is  tifleen  miles  in  mean  lireadth.  " 
( Id. )  In  I?*!;!  (jrcat  Britain  claimed  jurisdiction  over  the  waters  of  the 
'lav  of  Kundv.  which  i-  from  ti,5  to  7.">  miles  wide,  and  i:!()  to  I  Id  niihs 
lonj;.  and  under  that  claim  Her  llritaniiic  .Ma.jest.v's  cruiser  seized  the 
hcliooiier  H  tiHliitiiiton,  llvinj;  the  American  Ihi};,  for  lishiii);  in  that  ba.y. 
i.See  decisi(m  of  liritish  I'miiire  ajfainst  Great  llritain,  >lixed  t  oniniis- 
sion  cases,  under  Convcntiiui  of  \K>',i,  p.  170.  iii/'ivi.  p.  lOH.) 


CLAIMANTS rlTI/ENs    Ol'    THK    UNlTKIi    STA'l'KS. 


"»lt 


a<{!iinst  S|)iiiii,  the  coimtrv  of  orijiiiwil  fillt'<jiiiiic(',  iind 


wiis  not  a  fliiini  tor  iiiiiirics  rcsii 


Itino'  t 


I'OMI 


tl 


('    COIISC 


(luciiccs  <it'  ;n'ts   liostilc  to  tliiit  coiiiitrw  or  I'oi-  viol; 


tioii  of  lici'  Ifiws, 


(/■)   "'riic   I 


niKs. 


CilSC    IS    not    III    llOlllt 


For  tlic  rciisoiis  just  stilted  this 


As  to  citizens  of  tlie  I'liiled  Stiit( 


tliiit    tlie\'    were    iloiiiicileu 


Idlt 


s,  then,  iissuinin;^' 


not    uiitnr 


ih/.e.l 


in 


IS  iis  eliiiiiifints 


(irciit    Ih'itfiin.  whiit   iire  tlieir  rehitioi 

to  tile  I'liiteil  Stiites  iind  (irciit  Mritiiin  in  r 

injuries  siitl'ered  whih-  seiilin^'  in   IJeriny  Sen,  in 


esjKM 


act    of    vitdiitiim 


tlie    I; 


UVS    o 


t  of 

Iho 
f  tlie    I'liited    States   in 


r^      

(|nestion,  and  in  (h-fyiiiji'  and  atteiii|>tinj;'  to  (dmh-  the 
jurisdiction  ot'  the  I'liited  States  tdainied  1)\  that 
(lovcrnnieiit  in  tlie  waters  where  tlieir  |a'o|iert\  was 
taken  in  tliat  act.' 

It  is  to  l)eol)served  tliat  tliere  is  no  (juestioii  wliat- 
ever  as  to  tliis  |)ro|)ositioii  :  'Tliat  tlut  |)rovisions  ot' 
the  Ke\ised  Statutes  of  the  I'nited  States,  sections 
111.")!),  etc.,  were  ludd  1)\'  the  courts  of  the  I'liited 
States,  which  as  the  Paris  .\ward  finds  were  courts 
"haviiiii'  all  the  jurisdiction  and  powers  of  courts  ofi'''"'l"'S  ^'."- 

I  J      1  ii  r  1  s 

admiralty."   to   he  statutes  apiilyitiL;-  to  tlie  place  of    Award. 

seizure  in  the  waters  of  Bering'  Sea,  and  that  all  the 

soverei^'ii  authorities  of  the  I'liited  States  assei'tiMl  tlie 

jurisdiction  to  execute  those  statutes  in  those  waters.*  ''""lins  !• 

^loreover,  that  whether  the  I'liited  States  had 
juristnction  <^r  not,  those  statutes  l)\-  their  construction 
in  terms  and  l»y  all  the  canons  ot' statutor\-  construc- 
tion, had,  as  to  I'liited  States  citizens,  an  e.xteri'itorial 
effect;  and  furthermore,  were  penal  statutes  for  the 
pi'otectioii  of  a  trade. 

In  the  arjiumeut  submitted  het'ore  the  Paris  Trihu- 
nal  tlio  counsel  of  (Jreat  Britain,  at  the  head  of  whom 

*  TL«  iissertion  of  sovcioif^iity  over  teiritorv.  ami  in  all  caNcs  of  dis- 
pute as  t(i. jurisdiction  contcHtt'd  liy  otlier  nations  usts  witli  tins  Kxi'iu- 
tive  branch  of  the  (Jovcrninent.     See  Wliart.  Dig.,  sec.  21.' and  cases. 


^ 

^  ^ 

^'•^^o. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


■a  12.8 

itt  11,2 


2.2 


IK 

lU 

u 


140 


2.0 


m 


i 

^  N^  Ii4 

^^^B      lllls:^^     llnl^^s 

< 

6"     

^ 

fliotographic 

Sciences 
Corporation 


23  WIST  MAIN  STRiiT 

WIRSTIR.N.Y.  14SM 

(716)  t73-4S03 


5r 


\ 


S 
^ 


}\\y''}i\n'rWn' 


(JO  CLAIMANTS — ClTI/.liNS    <»l'    IIIK    UMTKD    8TATKS. 

stoixl  tilt'  pn-sfiit  Ltinl  Cliirf  .Iiistici*  of  Kn<;-|jiii<l,  liiiti 
<ln\vn  tliis  |iri>|iiisiti<iii: 

Tli(>  only  ri^lit  of  |troti'(;tioii  «)f  tlsliin^  iiiid  otIiiM-  tV*>f 
swiiniiiiiiK  aiiinials  in  tlirliiiih  MfiinwUu-h  can  bt>  «'\«>ri'is(Ml  l>y 
any  Stair  (apart  iVoni  coMVi'ntion)  ix  om  lujahmt  itn  oirii 
iititioiitilH.  It  may  Im>  in  the  interoHt  of  coinnicrcc  nd  tlu' 
tisliini;  intlustry  ol'  the  nation  that  all  its  tishtTinen  alik«> 
shonhl  he  uiailf  to  ri'spt'ct  a  close  time,  even  tor  niip-atory 
lislies.  aiul  even  in  tln^  (leep  sea. 

A  Static  lias  a  ri};ht  to  le^iHlate  tor  its  own  snlijects  on  the 
liitjh  seas.     ( Vol.  10.  C.  S.  Keprint.  p.  .«>.) 

Ami  iiiiiiiii  ill  tlic  IJritisli  rniiiitfr  case  (\'ul.  \'MI, 
p.  S.^): 

In  connection  with  this  braiieli  of  the  subject,  vi/,  the 
scope  an<l  ellect  of  the  Ie};islation  of  other  nations,  it  isessi-n- 
tial  to  keep  in  niiiHl  the  well  known  rule  of  intcrnatiointi  law, 
tliat  the  laws  of  a  nation  affect  none  hut  itsoini  siil>jiils,iO\{\ 
the  Hulijects  of  other  initions  whose  persons  m-  )iro|ierty  may 
l)c  within  its  territorial. juristlictiun. 

.VikI  it  |(i<i<('ciU  to  (|iiot(',  imionji'  other  aiitlnnitics. 
tlic  work  of  Sir  V.  U.  .Nlaxwi'll  as  a  stamlanl  antlior- 
ity  on  tlic  iiiti'r|ir('tatioii  of  statutes. 

After  statin;^-  that  |nimarily  the  It-iiislatio-.i  of  a 
eouiitry  is  territorial,  ami  that  the  laws  of  a  nation 
ii|i|tly  to  all  its  sniijects  ami  all  thin^is  within  its  ter- 
ritory, the  citation  proceeils: 

It  is  triu^  this  does  not  comprise  the  whole  of  the  leyiti 
mate  jnrisiliction  of  a  State,  for  it  has  a  ri^ht  to  impose  its 
Icjfislation  upon  its  snltjeets,  natural  or  naturalized,  in  every 
pai't  of  the  world,  and  iinleed  on  sinli  matters  as  ]iersonal 
status  or  ca]iacity  it  is  uiaU'rstood  always  tu  do  so;  hut 
with  that  exception,  in  the  ahsence  of  an  intention  rlrinlj/ 
rxinrxKfil  or  to  Uv  inl'erml  vither  from  itx  oirii  Unujinuje  or  from 
till'  ohjrii,  or  Hiihjirtmntti'r,  or  hintory  of  the  eHitiimitit,  the 
presumption  is  that  Parliament  does  not  deaijfn  itsstatutes  to 
operate  on  them  beyond  the  territorial  liniits  of  the  I'nited 
Kingdom. 

.\ml  at  pa^i'c  Sfl,  from  the  jiiflffnicnt  of  Dr.  I^iisli- 
injitoti  in  the  /ollrnriii,  (SwaW.  W.,  p.  W): 

In  endeavoring  to  |)ut  a  eonstriietion  on  a  Htatute,  it  mu8t 
be  borne  in  mind  huw  far  tlu>  power  of  the  British  Legislature 


|:J 

i->\ 

■  ;i  i 

J  1 

1     '1! 

CLAIMANTS — crnZKNS   oK   THE    LMTEK   STATES. 


6i 


oxteiidH,  for  uiih'HH  tlu>  words  aii'  so  vWur  tliar  a  rontrary 
coiistMKttioii  can  in  no  way  lie  avoided,  I  must  |in>8nni('  that 
the  LcKislatiirtMliil  not  intend  to  no  beyond  this  |)ower. 

The  Itnrx  of  (hr»t  llritaiii  iifl'vct  lirr  oini  suhjiHn  rrrri/- 
wheiT—foiritiiicrit  onltj  irhfii  irilhin  hvr  oirnjurmlirtion. 

And  ill  tlu'  I'liiti'il  States  tlif  niK-  «tt"  iiittM-iiiitiniiiil 
law, always  licM,  is  tliat  tin-  inuiiiripai  laws  of  a  nation 
extend  oxer  all  citizens  and  sniijerts  everxwliere  on 
the  earth.  (The  Ajiollon,  ;)  Wheat..  .'«;•_':  Ilmlson  r. 
(^nestier,  fi  ('ranch,  241.  overrnlinji'   *  ('ranch,  "Jil.) 

.\nd  thronjiiiont  the  ar<:nnient  on  l»otli  sides  l»etore 
tne  I'aris  Triltnnal,  it  is  admitted  that  in  so  tar  as  these 
statntes  ot"  the  rnit«'d  States  are  concerned,  tliev  an* 
ot'  an  exterritorial  character  on  their  face,  and  the  onlv 
contentioi\  was  that,  iiein^i-  nnniicijtal  statntes.  thev.  of 
conrse,  cotdd  not  liind  torei;iiH'rs. 

.\iid  see  'Aheaton's  conchision  that  every  nation 
li  .s  jiM'isdictittn  oxer  all  citizens,  wherever  fonnd. 
(I)atia's  Wheat..  vV^  ll.'),  11.-..) 

Now,  initil  the  joint  resolution  of  ('onyress  of  the '•''',  f-^'?*' 
I .    .       I      .  .     •,  I      I      .  1         .1  "*  '">  2-3. 

I  inted   States,  in    ISiiH,  declarniy  tiie  rijilit  ot   expa- 

triation,   which   was   shortly   followeil   Ity   the  treaty 

hetweeii  (Jreat  Mritain  and  the  I'liitefl  Slates  of  lS7ll, 

|)rovidin;.>'   for    n.-ttnralizatioii,    it    was    held    l)\     Itoth 

(Ireat    Ihitain   and   the    rnit»'d   States  tiiat  a  «"itizen 

conid  not  throw  oH'  his  ori<>inal  alh-^iiance. 

In  the  I  iiited  States,  the  inclination  of  the  Judiciary  has 
lH>en  to  follow  tiie  rale  of  tlie  Kn^Iish  common  law.  and  to 
hold  that  neither  a  initive  or  naturalized  citizen  can  throw 
otf  his  alleffiaiure  without  the  consent  of  his  Htate.  (Kent'ti 
(;om.,  '_'41»;  Story  on  Constitution,  111,  .5,  Note  1 ;  Wharton's 
State  Trials,  0"»4;  Opinions  of  Attorneys  (k'ueral,  Vol.  VIII, 

ir.7.) 

The  doctrin<'  of  ori<>'iiia]  al]<'<>iance  remains  the 
same  in  iioth  «'onntries  in  every  respect  except  in 
the  case  of  actual  and  formal  natin'alization. 

Lord  Chief  Justice  ('o«'khurn,  in  his  "Nationality" 
(paocs  214-21.5),  after  a  full  revi«'w  of  the  whole  sul>- 
ject,  says:  That  "under  a  sound  system  of  interiui- 


If 


I.      >' 


62  CLAIMANTS — CITIZENS   OF   THE    UNITED   STATES. 

tioiiiil  law  such  a  thin<>-  as  a.  (l<tul»le  nationality  hIiouM 
not  Itt'  siirt'crcd  to  t-xist;"  antl  that  nothin<>-  slidpt  of 
actual  naturalization  carried  out  by  solemn  and  t'onnal 
act  as  the  law  of  the  particular  country  may  re(|uire 
will  have  the  effect  to  divest  the  subject  of  his  former 
alle<i'iance:  "that  reiuuu-iation  of  former  alle<>:iance  (tr 
rights  will  not  suttice  to  <iive  the  character  of  citizen 
or  sultject  of  the  country  of  adoption,  which  can  l)e 
ac<|uired  only  by  the  act  of  naturalization  itself:  and 
that  the  effect  of  the  naturalization  is  prosjiective 
onl\  and  has  no  retroactivi-  operation."  (And  see 
Mail  Int.  Law,  |).  240,  as  to  the  British  doctrine.) 

It  is  laid  down  l»y  Hall  (p.  244)  that  until  a  new 
allejiiance  is  contracted  by  natmalization,  even  since 
the  naturalization  laws,  a  citizen  nuist  be  considered 
as  iMitnid  ity  his  alh'jfiance  to  the  <>overnmenl  under 
which  he  was  born,  and  subject  to  its  laws.  "I'nlil 
tliese  laws  [naturalization  laws]  are  .satisfied,  the  Sfjite 
into  which  a  ]iers<in  has  immi^irated  can  have  no  ri;>lit 
of  protectin;^- him."     (Id.,  p.  ■_'"»/).) 

In  the  vi»-w  <if  counsel  for  the  I'nited  States,  the 
stat«'ment  just  (juoted  from  Hall  is  too  broad,  but 
the  uudtiubted  and  universal  rule  is  laid  down  in  a 
suuuuarv  of  this  exterritorial  jiuisdiction  and  suver- 
ei;>n  riji'iit  bv  Sir  Sher.ston  Maker's  Halleck,  Vol.  1, 
20r.: 

Otlensi's  ajjaiiist  the  law  of  u  State,  rvguUiting  or  itrohibit 
ituj  iinji  piirticular  truilc,  if  coiniuitted  by  foreigner.s  witliin 
tlic  territiirial  jurisdiction  of  another  State,  are  not  pmiisli- 
able  by  the  tribunals  of  the  State  whose  laws  they  have 
violated;  hut  if  vommilteil  hy  its  vitizenit,  thtji  nrv  so  punish 
ahle,  HO  matti-r  irhi'ir  conimitteil,  whether  within  itn  own  liniitH, 
on  the  hiijh  Hetm,  or  in  a  foreign  eoinitrii, 

A  distinction,  however,  must  be  nnulv  between  mere  eoin- 
merciol  reijulatioHx  ))erinittiug  or  prohibiting  a  certain  triule, 
and  statutes  treating  a  criminal  olt'ense,  with  personal  penal- 
ties expressly  applicable  to  all  the  citizens  of  the  State.  The 
commercial  <lomicile  of  a  ]>arty  may  sometimes  exempt  him 
from  the  oi»eration  of  the  laws  of  trade  of  his  own  country, 
but  while  his  former  allegiance  continues  he  is  liable  to 


CLAIMANTS — CITIZENS   OK    I'HK    UNITKI)    STACKS. 

incur  tbe  peiiiilties  of  a  L-riininal  utt'i'iise  ugaiiiHt  bis  own 
luiuntry,  which  penalties  may  be  enforced  whenever  he  comes 
witiiin  tlio  reacii  of  its  municipal  laws. — (Citing:  Fii-lix, 
Dntit  Int.  I'rivf,  sections  ."ilO-.'i.JU;  Anu'rican  .lurist,  Vol. 
XXil,  pp.  .'{Hl-'Wii;  Masse,  Droit  ('ommercial,  torn,  il,  sec. 
;!S,  ;{7«i.  el  sill.;  Hello,  Derccho  luternacional,  pt.  I,  Cap.  IV, 
sees.  5,  (i.) 

It  need  not  lie  ar<»iUMl  that  the  ahsnliit*'  ri<>lits  of 
Stiit<'s,  1\  inaf  at  tlir  t'lMiiidatioii  of  cvcrvtliiii"-  vUv,  is 
tlu'  rijilit  of  si'It-pn'stTvatioii  (Dana's  Wlicatoii,  sec. 
()1),  aial  it  woulil  he  a  vain  n^lit  it'  a  nation  could 
not  ])roti'('t  its  |»nl»Iic  iiropcrty  a;;ainst  its  own  citizens 
wlicn-vcr  it  and  tlu'v  may  1h'. 

Of  course  sucli  laws  ciui  not  be  enforced  iijton  tiie 
jinsitii  of  a  citizen  if  lie  he  l)eyond  the  jurisdiction, 
lait  no  one  would  deny  the  jiowerof  the  ^dvernnient 
to  seize  n)»on  his  |»ro|»erty  for  violation  of  such  laws, 
if  the  |tro|ierty  he  found  within  the  jurisdiction  or 
upon  the  high  seas. 

It  is  lai<l  down  in  Lawrence's  Wheaton  (Kleinents 
of  int.  Law,  (ith  ed.,  p.  17"))  that  offenses  against 
the  law  of  a  State,  |)rohil>itin<>:  or  regidating  a  /«»/- 
tiniliir  inil/ir,  or  regulating  the  laws  of  trade  and 
navigation,  are  hinding  upon  the  citizens  of  a  State 
wherever  they  may  Im'. 

In  Mars'  I 'rival*'  Int.  Law  ((Sidespie  Trans.  Kdin- 
lau'gh,  'id  ed.,  j).  Mi't  and  notes)  the  undouhted  rule 
in  this  case  is  laid  down:  '' 7'//r  Stati-  of  iloiiiirili' 
tiHiji  vjtcuil  inntrrtiiiH  to  a  <loiniiihtlfon'i(/iirr  us  <if/ainst 
iiflicr  roillltliis,  KXCKPT  THE  COUNTKY  OF  ORIGINAL 
AM.EOIANC'E." 

.ludge  K.  Uockwood  Jloar,  of  New  Hngland,  former 
.\ttorney-(»eiieral  of  the  I'nited  States  and  one  of 
the  most  distinguished  lawyers  of  America,  in  the 
harday  case,  l)ef<»re  the  Mixed  ('<»nunission  of  1S7L 
demonstrated  that  legal  (hanicile  in  a  country  consti- 
tuted citizenship  of  that  coinitrv. 

Ill  a  learned  an«l  most  careful  argument,  showing 


(J3 


64  CLAIMANTS — CITIZKNS   OK   TIIK    llNITKl)   STATES. 

in  its  citatitiiis  tlu'  most  rxliimstivc  rcsciircli,  lie  wjis 
(■niii|/«-ll<'<l  to  iMliiiit  tliiit  tlic  ('(iiicliiHiMii  of  iill  the 
aiitlioi'itics  on  intrrnationiil  law  was  that  tlic  nation 
ot  tloniicili'  t-oiilil  intiTvcnu  tor  tlit*  prott-ction  ot'  a 
person  so  doiuiriliattMl  as  a^jainst  i-vcry  nation  rjci/il 
(lif  itiifioii  (if  lii.s  oiit/iiiiil  rifiifnslii/);  that  lor  certain 
pnrposcs  th»'  htcal  sovcreifiiity  conld  intervene  ami 
protect  him  even  against  that  conntry,  l»nt  iirrrr  in 
ilinii/iilioit  uf  titf  lit/Ills  of  tlif  iinnitiji  <if  liis  h'ntli  ns 
n't()i/iii:iil  1)1)  iiifrnmtioiiiil  Ian.  (See  ar^^nment  of 
.In<l<i-e  lloar  on  tlennnrer,  l{<'port  of  Mritish  A;i'ent, 
Claims  Commission  of  ls71,  p.  "JHd,  an<l  «Mtations.) 

I'lie  Hritish  position  in  that  »*ase  was  of  conrsc 
stron^ily  for  the  exception  so  stated  Itv  .Indfi'e  Hoar, 
as  appears  liy  the  reported  ar^nments  of  ller  Maj- 
esty's coinisel  in  th«'  last  citation. 

In  snch  case  as  stated    hy  Kent  (Lect.  I\',  sec.  "ia, 

I».  411):  "The  person  so  domiciled  does  not  cease  to 
»e  Itotntd  l)\  tile  alh'jiiance  due  to  the  country  of  his 
l.irth." 

It  has  been  seen  that  in  tlu*  Handay  Case  the 
dennirrer  was  decided  adversely  to  the  I'nited  States 
on  two  jiToimds  only:* 

(1)  The  use  of  the  term  "  Uritish  snhject"  in  the 
convention,  and 

(*J)  'J'iiat  it  appeared  atlirmatively,  as  admitted  l»y 
the  deimurer,  that  Barclay  IkkI  ikiI  riit/atiil  tlir  iillif/i- 
(Uiic  >lnr  fniii  liiiii  to  tlii'  fount  Iff  ojliix  (loHiirilc.  ( Kept  »rt 
of  British  Aj-ent,  Com.  '71,  p.  -JitT.) 

In  the  Koszta  case  the  I'nited  Stati's  asserted  in 
the  .strongest  possible  terms  the  jicneral  doctrine  of 
the  alle<>'iancu  of  a  domiciled  |)ers(Hi  to  the  nation  ot 
his  domicile. 

*  A  8.vi)<i|isiti  of  tliu  0|iiiiinM  of  the  cuiuiiiiHHionerH  will  be  funnd  »t  puge 
13  of  tliu .\tn<Tican  AKent'H  Itepnrt  (vol.6),  papers  relating  to  the  trciity 
of  Waahiiigtuu. 


CLAIMANTS — CIT1ZKX8   OK   TlIK    INITEP   STATES. 


65 


It  is  the  (lortriiic  wliicli  is  so  stmnoly  nssrrtcd  in 
tlx*  Itritisli  iir;>'iiiii*'iir  her*'.  I'liit  the  Hritisli  iir;>'uiiiciit 
liik«*s  nil  niitifc  ot"  tin-  «'Xt'('|»tinn,  wliicii  we  liiivc  dis- 
ciisscd,  moro  stmiioly  mitl  ('ni|i]iiiti«-iilly  Inid  down 
liy  intt-niiitionid  iuitiioritics,  wlicn  the  «|(i('sti(iu  lias 
ftirnc  lip  t'lir  fonsidcnitinn,  than  the  ;>'*'ncral  rule 
stated.  As  lias  Iteen  seen,  tliat  exeeptioii  was  not  in 
in  any  of  the  eases  eited  in  the  Hritisli  .irjiUinent 
here,  and  in  tlu-iii  there  were  no  taets  hrinjiin;;'  the 
(|iiestion  u|i  tor  eonsideratioii. 

Kos/ta  was  a  nik.ive-liorn  citizen  of  Austria,  and 
the  ri^i'ht  i>f  the  ( loveiniiient  of  the  I'liiteil  States  to 
]irot«'ct  iiiin  was  asserted  a<;ainst  Tiirkev — not  Austria. 

What  the  |iositioiinf  the  I'liited  Stales  would  have 
iieeii  as  to  .\ustria  is  sta1«'d  as  follows  l»y  tlu'  Secre- 
tary of  Stat*-: 

Had  Koszta  been  within  tlie  jiirisdictioii  of  Austria  when 
lie  was  sei/i'd.  thu  whole  character  of  tlie  case  woiihl  have 
Im'cii  ciiuii^cil,  and  the  forcible  takiii;;:  of  him  from  the  le»;:al 
custody  of  Austrian  oflicers  could  not  have  been  d«'fcndcd 
on  any  ininciplc  of  munieipal or  internuti<aml  law.*  (-  Whiu ■ 
ton's  int.  I»ig..  p.  •"•(>"»,  sec.  'M'-i.) 

.lusepli  Murns  was  a  sailor  on  an  .\nu>riean  whale- 
ship,  which  was  sunk  l»y  the  Alahintitt.  The  whaler 
was  .\iiierican,  liecause  she  was  .\iiiericaii  owned,  and 
sailed  from  New  Hedt'ord,  Mas.-.  Ke  then-fore.  for  tlii' 
purposes  (d'  protection  l>v  his  nation,  had  all  the  rijihts 
of  a  domiciliated  citi/.en,  and  soiiu-thin;:'  more,  that  of 
ii  sailor  on  a  ship  whi»"h  was  heyoiid  (piestioii  Amer- 
ican territi>ry.  Itecause  American  owiumI.  (See  Domi- 
cile authorities  siipid.) 

I  lis  claim  was  disallowefl  l»y  the  (Jeiieva  Arltitra- 
tioii  on  the  Mritish  sliowin;:'  that  he  was  apjtarently  a 

'  Tint  |)iiiiit  r:iiii»  up  ilii'urtly  will)  Austria  in  Siinou  riiuni^'s  ijihi',  iiiiil 
till-  Aiiu'ili'iiii  Seiictiiry  id'  Stiite,  Mr.  Marc.v,  wlm  liml  kuukIiI  to  iiiotcct 
KoHxta  ill  Turkey.  ili'uliiiL><l  to  intervene  tii  proteit  Tiiiisi;;,  an  original 
^^nlijei't  III'  AuHtria,  anil  who  had  retiirneil  theru  teniiiorarilv.  (See  llal- 
lei'U.  V.  XXIX.  «  I.I     Am.  Kil. 


H   S- 


-(» 


1 


66 


NOT   NATIONAL   CLAIMS. 


Itritisli  suhjcct.*  (Scd  \V»'»t  /'.  rnih'd  Stntcs,  cih'd  in 
tlio  Hritisli  iir;>'iini('iit  iit  p.  TiO  as  tlic  Wortli  ciisc,  aiitl 
pn|M'rs  r('liitiii<r  to  Tn'Mty  of  WHsliiiifi-toii — "Cliiiins.") 
It  iii»'vitiil>ly  t'ollows  tliiit  ({rent  Ikitaiii  coiiM  not 
intervene  tor  tlie  protection  ot"  and  reelaniation  for 
American  citizens  doinicilol  in  (Jreat  Mritain  asa<>ainst 
tile  United  States  in  cases  wlu-re  their  property  liad 
lu-en  taken  l»y  the  antliority  of  tlie  soverei«>nty  of  the 
Unitcfl  States  for  viohition  of  the  municipal  hnvs  in 
(iiiestion  and  for  th-tiance  of  the  soverei<«n  chiims  of 
that  nation. 


NOT  NATIONAL  CLAIMS. 

'I'he  Mritisli  ar;>'nment  seeks  to  avoid  tliis  <'onchi- 
sion,  l>oth  in  the  case  of  Cooper  and  in  the  case  of 
the  American  <'iti/.ens  aUejicd  to  he  domicihated  in 
( treat  Mritain,  on  th«'  <>'round  that  these  an*  not  private 
claims,  hut  national  claims,  in  the  sense  that  thev  are 
to  he  recovered  in  the  individual  ri;>ht,  so  to  sprak, 
of  the  (Jovi-rnment  of  (ireat  Mritain:  and  it  cites 
(p.  lit)  the  case  where  China  paid  to  the  Mritish  (lov- 
ernment  ><.'{,( M»(>,(M  10  on  accoiuit  of  deltts  due  to 
Hritisli  siihjects  from  ••ertaiii  Chinese  merchants. 
Hence,  the  contention  is  that  no  defense  ^-oiiiji'  to  the 
natitinal  slatus  of  a  claimant  can  lie  mad«'. 

Of  course,  in  the  case  stated  there  was  no  Claims 
('oiiveiition  and  no  provision  in  the  treaty,  as  in  this, 
liiiiitin;:'  the  recovery  of  t  u-  ih'itisli  ( Joverniiieiit  to 
the  case  of  '•persons"  oil  \  hose  account  she  mi^i'lit 

'  An  fxitiiiiiiatiiiii  of  tlic  iiMonl  (liKclKsrH  tliiit  ItiiriiH,  tlio  Hitilnr.  wim 
(Ic'i'fitM'il,  :iiiil  that  IiIh  c'laiiii  w.ih  iirrsi'i  tcil  liv  IiIh  rutlirr  im  his  li';;iil 
ri'iiii'Sfiitatlvc.  who  nwidcd  at  .Miinrhrs.iT,  ICiiKlniiil :  Iml  licfon-  the 
Mixi'il  (  iiiiiiiiissioii  of  1ST!  it  was  Ik-IiI  in  such  a  caHit  that  lliu  ri);lit  to 
I'tM'Over  il(>]i(>iiil<-(l  ii|i(>ii  thit  national  charai  trr  of  tho  ihToascil,  ami  not 
npon  that  of  liis  adniinislrator. 

"I'hi!  Coiiiniissionors  arc  all  of  ihiMipiiiion  that  thr  particnlar  iiation- 
alitv  of  the  adininltitrator  ilueN  not  alVi-it  the  iini'stion."  (T,  IS,  rnnea 
XOit-L'lL'-Ltl.'i.) 


NOT   NATIONAL   CLAIMS. 


67 


l)«- ciititliMl  to  i-l)iiiii,  iiixl  no  |ii'ovisioii  for  tlic  aiMlitiii;;' 
iinil  tiiitliti^j' of  "ciicli"  i-liiiiii. 

'riui   <listiiH-tioii    lM't\v«M'ii   tliiit   ciisj',  iis  stJiIrd    ''}' "".g  b?"'  ^''" 
ltlii*-kl)iirii,  .1.,  in  tlic  |mss;i;>«-  <|Uotc<l  jit  |»)i;;<'  4!t,  inid       ' 
tliis  ciisc  is  In'oiMlly  tiniwn  in  tin-  Itritisli  iii'^^inncnt 
itsi'lt',    where    it    <|notes    iVoin    tlut    |)rinnnion<l    t-iise 
(•_*  Kiiiipp)  iit  ]m<>:v  hi\. 

Tliiit  Wfis  ii  ( 'liiinis  ' 'nnveiitioii,  iintl  it  is  clenrly 
shown  in  the  iinssnye  (Hiot«'<l  rmiii  the  viee-ehiinceUor 
thiit  tile  recovery  <h'|teiitls  npou  tlir  pi rsiiiiid  trlatiims 
iiin/  sfottis  of  thr  thiiiiKiiit  (|Uoii)l  flif  iliiiiii. 

It  is  true  tliiit  these  are  national  claims  in  the  sens(> 
that  they  are  preseiitetl  a<;ainst  the  I'liited  Stales  l»y 
the  nation  heraiise  tlu-re  is  no  other  way  to  present 
them;  and  any  (Joveinment  ow«'s  it  to  tlios*-  within 
its  protection  in  respect  ot"  its  ohlioatioiis  to  its  citizens 
to  take  up  their  cause  as  a  nation,  and  this  is  the  en- 
tire doctrine  ipioted  from  Wharton  in  the  Hritish  hrief 
at  pa}>e  4S. 

( )f  cours«'  it  is  the  universal  doctrine,  to  wlii«'li  there 
are  no  e\ce|)tions,  that  if  a  citi/.eii  of  one  nation  eoin- 
plains  of  wron<>-done  him  Wy  another  nation,  hisliov- 
ernmeiit  must  assume  the  respoiisihility  of  presenting 
♦he  claim.  .V  claim  on  hehalf  of  forei;.;n  siiltjects  of 
.lotlier  (loveiimieiit  under  the  estahlisheil  rules 
of  international  law  is  not  eiiMtled  to  consideration 
unless  a  demand  is  made  liy  the  (Joxernment  of  tlu' 
country  of  which  the  claimant  is  a  suhject  or  citizen. 
(See  I'liiteil  States  r.  hiekelman.  92  l'.  S.,  fiiO,  and 
•J  Wharton's  i)i;:\.  sec.  '2\-i  H  sii/.) 

This  is  the  entire  extent  of  (ireat  Mritain's  interest 
in  the  claims. 

I'nder  all  claims  coiixentioiis  hetween  nations 
throu^ihout  their  history,  the  Commissioners  under 
them  have  heen  occiipieil  for  the  most  |iart  in  <lecidin<>' 
for  or  a-^ainst  claimants  on  the  <piestion  of  their  per- 
sonal status:  and  this  much  s|iace  is  devoted  to  that 


4 


98  VE88KI,8 — NATIONALITY    K01,M)W8   OWNEKSHIP. 

siiltjt'ct  solely  out  ot"  n'M|M'<'t  niitl  ilefen-m-i'  fo  tlic 
k'linicil  foiiiist'l  wiio  iii'o  iiistnu'liMl  t>t  |in's<'iit  flu'  point 
at  sonic  Icii^itli  iit  viirioiis  |tliin's  in  rlicir  ni'irinncnt  tor 
(jlirat  Uritnin.* 


■•UNITED  STATUS  OWNERSHIP,  '  OR  THE  BBARINO  OF 
THE  REGISTRY  AND  THE  FLAG  ON  THIS  CONTRO- 
VERSY. 

'I'll*'  ciipfion  "I'nitcd  Stiitcs  owncrsliip"  is  tiik<'n 
tVoiii  tlic  o|i|Mtsi'(j:-  In'ift't'or  ron\«-nifniT  of  trciitnicnt. 

It  is  not  seen,  liowcxcr.  how  jmy  «|n»'sti<Hi  ot"  na- 
tioiiiil  o\vii»'rs|ii|(  cini  lie  involvt-d.  iis  wonM  l»c  the 
case  it' a  finhlii-  sli'ifi  were  in  i|U*'stion. 

It  is  not  clfar  liow  the  Icarnin;:-  iircsciitcd  in  tlic 
ar;:nnit'nt  tor  (In-at  Britain  rt';;arilin;i-  tlic  rcjiistrv, 
tlu'  tia;;',  tlic  rij^lit  ot'scarrli.  ami  so  on.  is  n-lcvant. 

\\  liatcvcr  of  in\  iolaltility  from  an*l  conclusiveness 
a;;aiiist  iiii|iiir\  tliere  may  liavc  liccii,  or  wliatcvcr 
otlier  (|ncstion  of  national  ili;inity  may  liavc  Im-cii 
involved,  it  is  snlanittcd  at  the  outset  that  all  these 
considerations  have  lieeii  set  a>ide  I>y  the  |»rovision 
of  the  cfiiivtiilion  itself,  reservin;:-  to  the  I'liitcd 
States  (whatsoever  the  tla^i'.  the  re;;istry.  or  the  diu- 
nity)  the  kkiiit  to  iiH|uirc  into  owiiershi|i,  es|iecially 
with  reference  to  the  defense  resting  on  citi/enshi|». 

The  denial  of  lialiilitv  on  the  part  of  the  Initcd 
States,  it  is  clear,  ;^iies  not  only  to  the  claim  like  that 
of  ('oojier.  who  tor  the  purposes  of  this  controversy 
was  a  citizen  of  the  I'liited  States,  lint  to  the  claims 
of  the  native-liorn  or  naturalized  American  citizens 
who  are  alle;ied  to  have  lieeii  domiciled  in  <«reat 
Mritain. 

It  would  seem  to  he  the  position  of  dreiit  Britain 
that  the  award  of  the  arliitrators  at  Paris,  and  the 
jiresent  <'t;nvention.  which    was  its  direct   issue   au'l 

*  Sco  liiiH  Hi);umi'nt  pp.  s:!,  (*4,  «'t.  *vi\..  iiml  p.  IL'7. 


""'IW 


lli 


VK8»KL8 — NATIONALITY    KOIXOWS   OWNICKSHII'. 

HO(|iicl,  tlid  11  wholly  vain  tiling  in  provitliu^-  for  tlic 
iiKiiiirv  into  citi/.ciisliiii  of  owners. 

It  iH  said,  true,  tlu'  I'liited  States  may  raise  the 
question  of  lialnlitv  on  ownersiiip  and  show  that  the 
"actual"  own«'rs  of  the  seized  ships  were  in  fart  Ameri- 
can citizens,  and  may  till  tin*  entire  record  and  occupy* 
the  time  of  the  Commission  for  monti  in  adducing 
testimony  upon  that  point,  and  (ireat  Ih'itain  may 
occupy  other  months  with  counter  t«'stimony,  hut  tliat 
after  all  is  dt»ne,  this  is  the  utmost  I'Xtent  of  the  pur- 
pose of  the  provision:  that  iuuiiediately  after  the 
evidence  shall  lie  closed,  and  the  n-cord  made,  Itoth 
sides  are  in  the  same  position  thev  were  lict'ore,  in  this: 
That  the  rejiisfry,  the  tlaj>-,  and  so  on  are  still  a  con- 
clusive presumption  on  the  <pu-stion  of  ownership,  i.  e., 
that  the  sliowin;:'  of  the  British  Ha<;'  and  the  Uritisli 
icoister  is  conclusive  evidence  that  the  owners  of  a 
vessel  are  British  sidtjects! 

Two  Nations  seemed  to  conceive,  and  throu^ih 
intinite  pains  of  lalior,  in  ne;4°otiation,  in  treaty,  in 
arbitration,  and  ajiain  of  iie;,nitiation,  a^iain  of  treaty, 
and  a;i'ain  of  arltitratiu;!.  to  liav«-  Iteen  in  the  way  of 
|)roducin;i'  somethiii;;'  that  mi;;hl  !»•  called  a  residt. 
Si^ns  of  the  pains  to  this  particular  end  run  tln'ou;:h 
all  the  history  of  a  decade  and  a  half.  Hut  after  all, 
it  is  said  nothiii;^'  came  of  it,  not  even  the  ridinilns 
Hills.     Oidy  vacuum,  an<l  no  Itirth! 

Now  the  pn^itions  of  the  I'liited  States,  on  the 
other  hand,  are  these: 

First.  That  the  convention  opened  the  door  to  the 
iiMpiiry,  leavin;^'  the  ipiestioii  of  citi/eiiship  to  he 
determined  on  the  testimony  hy  the  ( 'ommissioners 
as  a  matter  of  fact,  and  the  (piestion  of  lialiility  on 
that  determination  of  fact  to  he  decided  l»y  the  Com- 
missioners as  a  matter  of  international  law. 

This  ar<>'umeiit  has  discussed  the  ipU'stioiis  of  inter- 
national   law   under    this    proposition    in    respect    of 


69 


■  1 1 


irirn 


70  VES«KL8 — NATIONALITY    KOLI.OWrt   OWNKUSIIII'. 

Mritisli  siiltjcrtH  (loiiiicilfil  in  tlu*  t'liitfil  Stntfs  uiitl 
Aiiicriniii  siihjffts  iill*';;'fil  to  Im-  (liiiiiifilcMl  in  (Sn>iit 
Itritiiiii,  tin  tlit'  iisHnnipiion  tliiit  it  nii^lit  Im*  o|M'n  tu 
)ir;>inn»'Mt — wliicii  is  nnw  (Ifuictl — utter  cstiililisliiu;; 
«-iti/<-nslii|)  tit'  citlitT  clinniftrr  iis  n  intittt'i-  iif  t'iii-t, 
tliiit  tlifi'i-  i'cniiiin«-i|  11  jnritliriil  tpu'stitin  ns  t<i  liiiliilitN 
unil«'i-tlif  ti'fiitx  tinti  rtiiivitntitin  <ir  intcvntitiomil  liiw. 

Sfciinil.  'riiiit  liy  tlic  'I'rciity  nf  \Viisliin;itoii  ot' 
IH'.l'J,  till-  jiwiinl  timl  tiiiiliii<>'  tit'  the  triliiniiil  nntlcr  it, 
iiiitl  tiiis  funvcntiiin  it  was  intcmlcil  t<i  Im*  scttlt-tl 
tliiit  iiti  ( iti/fii  tit'  tlif  I'liitt'tl  Stiitcs  roiiM  rcctivcr  n 
fliiiiii  (III  iH-fi>iiiit  lit'  injuries  iis  nii  iiwiier  antl  linlilfi- 
in  Nvliiij*'  III-  ill  piirt  tit'  ii  vessel. 

Wtirds  tii'  such  si^jnilieiiiiee  ns  "i»y  its  citizens,"  in 
Article  \'III  til'  the  trenty  of  ISlfJ,"  ctnihl  ntil  even 
in  ii  ciintiiift  lie  set  Jisitle  ns  li!iviii;»-  iiti  ineiinin;>';  iind 
they  certiiinly  can  iitit  lie  eliiniiijiteil  t'rtiin  a  stileiiin 
treaty  lietweeii  iiatitiiis  l»y  a  mere  tiltservation  on  the 
part  tit'  one  tit'  them  that  tlitise  wiirtis  liati  ntit  lieeii 
iliteiitiiinally  iisetl  (tipptisiiiy  ar^iUiiieiit,  p.  .'{S,  f't»|.  JO), 
es|iecially  as  the  impiiry  as  tti  citi/.eiisliip  is  reserved 
all  tliriiii;:ii  the  awarti,  the  tindin<:'s  tit'  tact,  and  this 
ctiiiventitiii. 

It  was  (dearly  the  inteiilidii  (if  tlidse  wliti  tirafteil 
r  e  tin(lin;:'s  nf  tact  \n  comdiide  this  tpiestion  in  liar- 
nitiiiN  with  the  prov  isidiistif  Arti(de  \  1 1 1  (if  the  treatx' 
(if  lS!l-_'. 

The  present  lord  (diief  justice  tif  l')n;^'lan(l  drafte(l 
tlidse  lindiii;is  (if  fact.  (See  his  statement  td  the  presi- 
dent (if  the  ( 'diirt  (if  Arliitratitiii,  \',{  American  I{e|»rint, 
!».  ."i."i  and  cdiitext.) 

At  \>n'if  4S  (if  the  .same  cdlhitpiy,  he  made  this 
statement  tu  the  arliitrattirs: 

Tlif  liiitliiii;s  tliat  tlic  vi-s.scis,  the  iianit'tt  tit'  wliicli  appciir 
in  till'  ciisc.  have  liccn  sci/.t'tl  xvliile  cxeicisin;;:  a  Icpil  riylit 
wiiiilil  not  coiicliKle  tlie  liatiility  of  tin*  Ciiiti'tl  States  to  pay 
if,  for  instance,  it  turned  out  tliat  Home  of  ttiose  vessels 
were  owned  by  eiti/ens  of  the  United  States  and  Niilijei't  to 
the  laws  of  the  liiitetl  States. 


VE8SKL8 — NATIONALITY    KOI.LOWH   UWNEKSHIi*. 


71 


Ami  iifriiin,  lit  |)ii<;('  f}4,  thin  apiK'iii'H: 

Mr.  .liiHtict*  II  ABi.AN  (uiiu  of  the  urliitrutorM).  Whut,  then, 
JH  l(>tt  tor  t'litnre  ncKotiiitioii  ? 

Hir  diiAiii.KS  UusHEM..  The  «|iioHtH)ii  of  ninniiiit. 

Ml.  .liiHtitT  llAiii.AN.  Only  of  iiiiioiiiit? 

Mir  t'UAiti.Ks  KiTssKi.L.  Tlif  (|n(>Htion  of  aninunt,  and  a 
littl«>  more  Mian  ainoiint;  a  <|u«stion  of  anioniit,  H|H>akiiiK  uf 
the  matter  in  kfohh;  a  (|ueHtioii  of  liability  aH  ri'itanlH  iteinx 
of  tliat  aiiioiiiit;  iih,  for  iiiMtance,  tiie  i|iioHtioii  of  whi>tii«M' 
(lie  rIainiaiitH  |Mit  forward  are  t'lititled  to  elaiin — wlH>tli«>r 
tlit>y  ar»  I'liittMl  StatcH  citixuiiH. 

.\|i!ift  t'ntiii  tlii'  coiii'liisivi'iK --  »•'  .till*  tft'iitv, 
iiwiinl,  limliiio's,  ami  coiivfiition.  let  li  la-  tciitativi'ly 
niiiMiiltTcil  as  an  o|M'ii  (|iifNtiMii  nt'  inrcniatitiiial  law, 
ami  this  will  la-  finisiilci'iMl  uml*T— 


I 


NATIONALITY  FOLLOWS  OWNERSHIP. 

.Vssiiiiiiiijr  that  rlif  i|ii<'sti<pii  is  -i.ll  ;i  jiiriilical  mn; 
iitit  (■•>ii(-lii(lci|  liy  the  treaty,  tin-  |i<>siti(iiis  of  (Jrcat 
Britain  ari'  not  tcnalilr  in  any  ruiirt  iiiliiiiiiist«Tin;> 
inti-i'iiatiiiiial  law. 

It  is  riainicil  tliat: 

dialer  no  priiaiph'  known  to  the  hiw  of  nations  ciiii  it  la- 
opi-ii  to  tht^  Uniti'd  States  in  tinit*  of  peace  to  iro  liciiind  liie 
llai;  or  ic^isttT.     i  ISrit.  .Vrt;iiiiient.  p.  .'<!),  I'ol.  •'«>. i 

.Vml  till-  sanif  tliin;:'  as  to  tin-  n';:ist('r  ami  the  tla<i- 
is  stati'il  in  ..tlicr  plan's. 

Tlic  Iciiniiny  ami  imliisfry  iicstowcil  uii  Tlu'  Kiolit 
(if  Scarcli  in  tlif  upposin^i'  la'icf  is  iinpri'ssivc,  tor  tin* 
reason  that  the  roneliisioii  arrived  at  is  not  as  imlefi- 
nile  ami  inisatist'aetorx'  on  that  iiineli  diseiissed  siiltject 
fis  have  heeii  all  other  ilei-laratioiis  of  (Jreat  Britain. 

I'll  to  the  present  time  that  ( ioveinim'iit  has  never 


liiselainied  tlie  n;ilit,  or,  as  it  is  called  in  the  ar;;nnieiit, 
"IK'niiission  to  visit"  a  vessel  tiviii;>' the  I'liited  States 

The  last  otHeial  eoininunieation  (d'tlu'  Hritish  CJov- 
ennneiit  to  eoiiiplete  th«'  eorrespondeiice  there  (pioted 


72  VESSELS — NATIONALITY    FOLLOWS   OWNEUSHIP. 

(til  till'  sultjcct  is  the  K'tt«'r  ot"  Lonl  .MaliiU'slmry  <)[ 
.Iiuie  11,  1S"»S,  to  Lonl  Niipicr  (Urit.  uiitl  For.  State 
Piipcrs,  lS.")7-8,  \\A.  ;")(),  p.  ;").'J7),  as  follows: 

Genenil  Cass  ohservos,  in  liis  note  to  Mr.  Napier  of  April 
10,  l.S.'tS,  tliat  'Ml  incrcliaiit  vessel  upon  tiie  luf;li  Heas  is  jtro 
tected  by  her  national  cliarat-tcr.  lie  who  I'oreibly  enters 
lier  does  so  np(»n  his  own  responsibility,  rntloiihteillji.  if  it 
riMMtl  nmiiiiiieM  «  iiatioiial  rharacter  to  irhivli  she  ii  not  ciilitlcd, 
(mil  is  sailinji  iiiiiirr  Jiihc  i-olors,  nhv  ran  not  he  proti'vtfil  Itj/ 
this  iissinnfition  of  a  iintiiniiilitu  to  wliicli  iihr  him  no  claim. 

•'As  the  iilvntity  of  n  person  nnist  he  ilvterniinvil  hi/  theofiirvr 
beiirinij  n  pntnss  for  his  itrrcst  iiml  ili'terniinnl  ill  the  risk  of 
sneh  offiirr,  sit  must  the  niitioniil  iilentiti/  of  it  ressel  he  ileter- 
minril  itt  the  Iihr  hnuinl  to  him  irho,  ilotthtinij  the  Jlitij  she  ilis- 
plitys,  seitrehes  her  to  itseertitin  her  trne  ehitriteter. 

'■'There  no  ilonht  mity  be  eireinnstiinees  irhieh  ironlil  fjofnr  to 
Moili/ji  the  eomplitinis  it  nittion  ironlil  hare  it  riijht  to  m  it  he  for 
It  riolittion  of  its  sorereiiinttj.  If  the  boartlin;;  ottieer  Inuljust 
jfronndsorsnsjtieion,  and  d»'iM)rted  himself  with  propriety  in 
the  ])ertorinance  of  Ids  task,  doin^  no  injury,  aud  peaceably 
retnrniii<;  when  satistied  of  his  error,  no  nation  would  make 
sncli  an  act  the  subjeet  of  seriinis  reelannttion." 

//()•  Miijistif's  llorernment  [continues  l,ord  Malinesbury] 
itfiree  entirelji  in  this  rieir  of  the  ease,  itnil  the  iineslion,  there- 
fore, Ineomes  une  soleh/ofiliseretion  on  the  fntrt  of  the  lioarilinij 
ofjteer. 

So  that,  after  all,  it  seems  fVoiii  the  |{iitish  position 
the  qiiestioii  of  ri;iht  and  wronj:'  and  ilaina^'es  woidd 
l)e  one  for  jutlitial  in(|iiirv  in  the  end. 

iJiit  the  discussion  of'  the  riuht  of  search  is,  in-  the 
way,  and  in  the  present  coiniectioii,  oidy  academic. 
The  <piestion  here  is  as  to  the  ritihl  of  .liiiiiiniii 
iiiitlioritif  III  lithe  nil  Aiiiiiii  iiii-iiiriirif  sliift,  irlinlrnr  In  i 
iri/islri/. 

The  I'liited  States  nnist  decline  to  accept  as  inter- 
national law  on  the  siiliject  the  nuniicipal  instructions 
of  (Sreat  IJritain  to  rejiistrars  (d'  shippinji',  as  quoted 
on  pa;:e  I.'),  folio  |(),  of  the  opposin;^'  argument. 

The  rule  of  international  law  as  to  the  effect  of  re<;- 
istrvainonj>-  nations  has  l)een  stated  1>\  (Jreat  iSritain 


;,       i 

111- 


VK8SEI.S — NATIONALITY    FOIiLOWS   OWNERSHIP. 

botort'  a  CHurt  of  iiiitioiis.  as  follows  (( Jciu'x  a  Arhi- 
tratioii;   "Mritisii  Case  aixl  Kvi(l«'in't',"  Vol.  1,  |).  79): 

Tlu'  effort  of  registry  is  to  «'iititle  the  ship  to  use  the 
Britisli  flag  and  assume  the  liritish  national  cliaraeter.  The 
eonditions  necessary  for  obtainiuf;  re^iistry,  in  the  ease  of  a 
ship  not  already  registered,  are  the  i)roduetion  to  the  rt'gis- 
trar  of  a  (H-rtilieate  by  the  liuilder,  in  a  form  prescribed  by 
law,  and  of  a  declaration  (also  in  prescribed  form)  lliat  tlif 
uliip  in  Hrilinh  oirnnl. 

it  IK  Hot  tlit'iliity  of  tit r  rvfiintror  to  ifuntioti  or  (iMirrtaiii  the 
nccHfiivji  o/ritin  r  tlw  l)iiililii-''s  rcrtijiralr  or  thr  <h'cliiratioii  of 
oirnirKliiii.  Am  o  miiiixtrridl  i)(Hvrr,  lir  ix  hoiiinl  to  arcrpt  them 
i I'  tinilvrvit  to  him. 

I'or  false  statements  in  the  certificate  the  builder  is  liable 
to  a  ]ienalty,  and  for  making  u  willfully  false  declaration 
the  owner  is  liable  to  be  indicted  for  a  lui.sdemeanor  and  to 
forfeit  his  inferest  in  the  shi]). 

In  (ireat  ISritaiii.as  in  the  Cuitetl  States,  the  law  does  not 
positively  ret|uire  the  registration  of  any  vessel.  IJiit  the 
disadvantages  and  disabilities  incurred  by  omitting  to  pro- 
cure it  are  practically  sullicient  to  nnike  tlu*  registration  of 
Itritishowned  ships  universal. 

The  rrjiiater.  though  in  onliiiar;/  ti>iinlioiis  iirixiiin  INDI'-B 
MlNIClfAl.  LAW  iridfiicf  of  thil'lllr  of  the  iicrxoH  rcfiislirrd 
<is  oirticr,  IS  Noi'  f'ONCi.rsiVK  ///  <i  iiiaslion  iirixiiit/  hitiriru 

othir  IKirlirx,   NOK    IS    IT   NKCKSSARII.V    SI  ri'ICII'.NT    I'KOOl'" 

OF  Tin;  NATioNAi,  fill AHACTKU  OK  Till;  siiii*.  .\  transfer 
to  a  foreigner,  at  sea.  or  beyond  seas,  of  :i  registered  Itritisli 
ship,  is  sullicient  to  change  its  o\MU'rshi])  and  the  nation- 
ality of  the  vessel,  though  not  followed  by  any  registry. 
The  law  <»f  registry  is  a  part  of  the  law  by  whit-h  Hritish 
trade  and  navigation  are  regulated  for  fiscal  and  other  pur- 
poses; and  ((  «/(//»  ix  niiistirnl  on  Urilish  mi  the  ruliiiitarii 
ilirl'irotion  of  thr  inrson  vlniiiiiiiii  to  Itv  oirnur  WITHOUT 
Ft  rthi;k  itrooj. 

Cliii'f  .liisfict'  .Maiisfii'ld  (in  (1i(>iniiiant  r.  l'iff.soii, 
4  Taunt,  i{r>7)  said: 

The  register  is  not  a  docunu'ut  i  Mpiired  by  the  law  of 
nations  as  expressive  of  the  ship's  luitional  character. 

Smith's  .Mcfcaiitilo  l.aw  (pp.  14;{-4): 

No  ship  is  required  to  be  registered,  registry  only  being 
necessary  to  confer  privileges  on  that  particular  ship. 
II  s 10 


73 


i. 


r. 


Www 


M 


74  VES8EI.8 — NATIONALITY    FOLLOWS   OWJJKIiSHIP. 

Piirsons's  .Miii'itiiiu'  l^aw  (Vol.  1,  p.  ;V.(): 

Tlie  law  is  iniwilliii};  to  recognize  in  the  fa«t  of  registra- 
tion any  other  el)i('i(Mi(;y  than  tliat  of  iinpartingccrtain  privi- 
leges, or  to  jterniit  the  absence  of  that  registration  to  have 
any  other  etVect  than  merely  to  i»revent  those  privileges  from 
attaching  to  the  ship. 

Kent  (Vol.  HI,  ]>.  14(j): 

Tlie  registry  is  not  a  tloennient  required  by  the  law  of 
nations.  The  registry  acts  are  to  be  eonsiileretl  as  forms  of 
local  or  muui(^ipal  institutions  for  )>urposes  of  public  ])oliey. 

I$iit  tlic  Iciidiii^i'  .Vincricaii  case  is  l>v  .lusticc  Storv, 
ill  1/)  I'ct..  .")l.S-,"(4.'{,  iiiiil  is  conclusive.  (Sc«'  Aiialv- 
sis,  ii/fni.  |».  7H. ) 

Tlif  Attonu'y-(u'iuMiil  of  tlic  L'liitcd  Stati's  ((itli 
Attonu'N -(  M'licriils'  Opinions,  (I4'.l): 

The  statutes  do  not  rciiiiirr  a  vessel  to  be  registered  and 
enrolled:  and  Ifoiniiil  by  a  citizen  of  tiie  I'nited  Stiites  she 
is  American  i»roi)erty,  and  possessed  of  all  the  general  rights 
of  the  jtropcrty  of  an  .Vmerican. 

.\nil  iit  piiiic  ().">■_*  lie  s|M'iilvs  ot"  tlic  rijilit  ot'  an  .Viiicr- 
iciin  citizen  to  jmrcliiisi'  mid  own  a  t'orcitiii  sliip,  and 
savs : 

Phesliipso  purchased  becomes eiilitlcd  to  bear  the  Hag  and 
receive  the  protection  of  the  Inited  .States. 

And  sec  Wliait.  IM^-.  (sec.  HO.  p.  it!).'?),  for  a  full 
review  id'  the  ipiestion  1»\  the  author  sustaininji'  the 
])ositioii  taken  here  (»n  this  (|nestion. 

Henry,  tlie  author  o\'  .\dmiralty  .Jurisdiction  and 
I'rocedure.  in  a  carefully  prepared  letter  printed  in  3 
Wliart.  Hi;.;.,  sec.  410,  sums  up  the  iuternatioiiid  <pies- 
tion  in  these  words — as  to  the  vessel's  character: 

The  i|uestion  as  to  the  disabilities  which  the  municipal 
rules  of  the  (lovernmeiit  of  the  owners  might  impo.se  on  such 
ves.sels  (lid  not  concern  other  nations  nor  aflect  their 
nationality. 

*  •  •  •  • 

So  far  as  the  international  side  of  the  i|uestioii  is  eoni'crned, 
the  i»osition  of  such  vessels  is  fixed.     Although  the  right  of 


fl 


VK8SEL8 — NATIONALITY    FOLLOWS   OWNERSHIP. 

such  vessels  to  carry  the  Hag  of  the  United  States  has  been 
discussed  in  two  hite  papers,  tliere  could  hardly  be  occasion 
for  such  a  question.  A  vessel's  tlag  is  only  its  sigiuil  to  other 
vessels  at  sea. 

The  national  bunting  displayed  isacouimunication  toother 
vessels  of  the  nationality  of  her  owner,  as  her  other  signals 
are  used  to  convey  the  name  of  the  private  owner,  or  of  the 
line  to  which  the  vessel  belongs. 


75 


The  word  "  Hag,"  when  used  either  in  public  or  private 
international    law,    in    maritime   subjects,   designates    the 

nationality  of  the  vessel,  arixiinj/rom  oinnnhip. 

»  »  «  '  '  »  » 

A  vessel  as  a  subject  of  nationality  is  not  considered  a  per- 
sonality any  more  than  any  other  chattel,  and  can  not  have 
any  other  nationality  impressed  on  it  except  that  arising 
from  ownership. 

Ill  Itarkcr '•.  IMui-iiix  Iiisuriiiuc  Company  (S.Iolius. 
R.,  .iOT),  Ki'iit.  ('.  .1.,  held  tliat  the  words  "Anicricau 
vessel"  as  n  warraiitx'  ot"  iiiitioiial  cliaractcr  is  t"iiliilI(Ml 
by  a  vessi'l  wholly  owiumI  l»y  .Vincrican  citizens, 
aitlioiijih  not  rejiistered  as  a  vessel  of  the  I'nited 
States.  And  in  the  I'nited  States  from  Story  to 
the  present  luMieh  of  the  Supreme  t'ourt  there  has 
been  no  departure  from  the  prineiph'  that  nation- 
ality follows  private  ownersliip — not  ownership  nu- 
tionalitv.  See  Tnited  States  n.  l\o<:ers,  !;"»(»  l'.  S., 
pp.  24!"»--_>(;()-;{,  where  .Mr.  .lustiee  Field,  in  deliv- 
ering- the  judfi'inent  of  the  ccturt,  .says  of  ships  on  the 
iiiji'h  seas:  "Construetividy  they  constitute  a  portion 
of  the  territory  of  the  nation  to  irliidi  their  oinirrs 
Iwlotiii"  "The  admiralty  jurisdietion  of  the  country 
of  the  owners  of  the  steamer,  they  Iteinji'  citizens  of 
the  United  States,  is  not  denied,  and  the  steamer  beino;' 
in  navijjable  waters  *  *  *  w^.  hold  these  waters 
to  l)e  hijfh  seas." 

Courts  of  admiralty  administer  international  law, 
and  it  is  a  common  thin<i'  for  those  courts  to  entertain 
disputes  as  to  the  ownership  of  vessels,  and  other  liti- 
•iiitions  as  to  them,  althou<>h  such  vessels  are  owned 


76  VESSELS NATIONALITY   FOLLOWS   OWNERSaiP. 

bv  toiviyiuTs,  iiiwl  slmwiiiy  as  (looumeuUMl  and  ivyis- 
tcrcd  as  t"(irei;>u  ships;  and  tlu'  jiidj;iiK'Ht  ot"  those 
(•Mints  tir  the  tith'  |»assin<i'  hy  roiKU'iiiiiation,  is  coii- 
clusive  i*\H'rvwh«'iv. 

Ill  the  fasi'  n\i'{\  in  the  liritisli  ar<iuniciit  (Kisohito, 
)».  .'{1,  tol.  ."»<•),  the  suit  was  a  colhsioii  rase  in  the 
liritish  Admiralty,  and  wlioUy  hetwecn  Krciuh  and 
Italian  (iwiii-rs. 

in  the  lasc  of  tlu'  E.ijxniiiint  (2  Dod.,  3S),  Sir 
William  Srott  held  the  (|Ui'stioii  of  owiUTship  of  a 
Spanish  documented  ship,  documented  as  Spanish 
owned,  could  l)e  settleil  in  the  IJritish  court. 

ill  rnite<l  States  r.  lirnne  (•_»  Wall.,  Jr.,  -JlU)  it  was 
held  "that  ///'•  iri/isfri/  was  not  even  iit'ntiii  fiaif  evi- 
dence of  the  ownership." 

Sir  Sherstou  iJaker's  llalleck  (Vol.  I,  p.  43^): 

The  national  cliaractfrofnierdinnt  sliips  is,  *'a.s  a  geiientl 
rule,  (k'teniiincd  In  that  of  tlioir  owners." 

.\nd  Dr.  I'hillimore.  in  his  Int.  J.aw  (\'ol.  Ill,  sec. 
("(•('( 'L.\.\XV),  says: 

Sliijts  are  ileeinod  to  belonji'  to  the  country  uiuler  wlicse 
liaj;  ami  pass  tlicy  navi};ate:  and  tliis  ciicunistance  is  con- 
rlnsixe  upon  their  fliaractcr.  *  *  •  \\  Idii,  li<iirenr,  it  is 
naid  thill  iliv  Jliiij  mill  jxinmiri'  roiiihiKirc  ini  tlir  rliariicti'roj'  tlir 
uliip,  tilt'  iiii'uiiiiiii  in  this:  Thill  thr  purty  who  liihis  the  luiii'til 
III'  Ihnii  is  hiiiisilf  Ijoiniil  hi/  thiiii :  lie  is  not  at  liberty,  when 
they  happen  to  operate  to  his  (lisailvantane,  to  tiuii  round 
aiul  deny  the  character  which  he  has  worn  forhisown  bene- 
lit  and  upon  the  credit  of  his  own  oath  or  solenni  deehu'a- 
tions;  lull  thru  ilo  mil  hiiiil  olhir  jiiirtiis  iis  iifiiiiiist  him.  Other 
parlies  are  at  liberty  to  show  that  these  aresjanions  creden- 
tials, assnmeii  tor  tlie  i)urpose  of  disjj;nisiny  the  real  character 
of  the  vessel:  and  it  is  no  incontestable  part  of  the  ortlinary 
occnitatioii  of  a  prize  court  to  pull  oil'  this  mask  and  exhibit 
thexcsscl  so  disj>uiscd  in  her  true  character  of  an  enemy's 
ves.sel. 

.\Liaiii.  aL!'reeiii;j;'  witli  llalleck,  I'hillimore  sa\s: 

lint,  in  general,  and  unless  in  s|)ecial  circumstances,  the 
nationui  cliarat^rer  of  ships  depends  upon  the  residence  of 
the  owner. 


VK88EL8 — NATIONALITY    FOLLOWS   OWNERSHIP. 


77 


It  iH  only  ships  and  cargoes  engaged  in  the  privileged  and 
peculiar  trade  of  a  nation,  under  a  special  contract  and  the 
sanction  of  the  government,  that  are  considered  as  atl'ected 
by  the  (character  of  the  nation. 

Ciiii  tluTc  be  aiiv  tltiul)t  tliat  jin  Amcricim  ship  may 
Ik*  sold  t(»  a  Britisli  sultjcrt,  (»r  a  Ikitish  sliip  In*  sold 
to  ail  AiDi'ricaii  citizt'ii,  in  any  part  nt'  the  world,  with- 
out rt'j«istratioii,  or  any  doubt  that  in  such  a  case  tlie 
nationality  of  tlit*  jturchasiT  wouhl  •iivc  to  the  ship 
his  charactiT  and  the  pnttcction  of  his  national  ti;\*>: 

Tiu'  o]iposin<>'  arjiunicnt  (piotcs  the  nicssajic  of 
President  (Irant,  in  ISTiJ,  in  the  i-asc  of  the  \"nii'iHins. 

I'rcsidcnt  Grant  docs  not  make  the  statement  con- 
tended for  in  the  Mr<>uinent,  but  says,  as  there  (pioted: 

When,  therefore,  she  left  the  port  of  Kingstcni,  in  October 
last,  luider  the  Hag  of  the  (Initeil  Htates,  nhc  iroiilil  <i})\H<utit 
hurt-  lni(l,  as  against  all  powers  except  the  I'^nited  States,  the 
right  to  tly  that  flag,  etc. 

On  pursuin<i-  the  history  of  the  Vhiiiuhis  cas*-,  as 
<ii\en  in  3  Wliarlon's  Int.  hi;^'.,  it  appears  that  on  the 
iniiiKi  Jiicif  case  presented,  tiie  I'liyiiiiiis  was  the 
property  of  a  citizen  of  the  United  States,  who  was 
the  true  and  onl\  owner  of  the  vessel.  Ihit  it  havinii' 
appeared  that  the  I '/////////(.s- was  not  owned  in  fact  by 
citizens  of  the  I'nited  States,  the  apoloi^y  from  S|iaiii 
and  the  salute  to  the  Ha<i'  of  the  I'nited  States  were 
dispensed  with,  as  it  was  conceded  l>y  the  I'liitecl 
States  that  Spain  had  a  ri<;ht  to  adduce  proof  to  >h(iw 
that  the  I'iif/iiiiiix  \\;\s  not  ri;.>'htfully  carryinji' the  tlaju' 
of  the  rnite<l  Stales. 


ihit  the  \ln/iiiiiis  and  similar  cases  invohinu'  the 
diiiii'tv  of  the  nation  ha\'e  no  bearin:^' wliatexcr  ujioii 
claims    preferred    under    a   claims  convention    in  an 

e  depends,  as 


mternational  c(»urt,  when  then-  rei 

under  all   claims   conventions,  u|ion   tlie  political   oi 

civil  status  of  the  claimant. 


•tituil 
th 


fl 


> 


78  VESSELS — NATIONALITY    FOLLOWS  OWNERSNIP. 

Mr.  Hiiviird  oonvctlv  stilted  the  law  ref^anliii"- 
iiiitiuiiiility  in  tlio  |iiissii<ii'  troin  Iiis  letter  (jiioted  on 
pa;;*'  4'J,  tWlio  iW,  of  the  Hritish  ar^iuiiieiit: 

By  the  law  of  riiitions  •  •  •  tlu'  citizens  or  suliject.s 
of  a  ])artiniiiir  coantry,  irho  tnr  tlir  oirinrM  of  a  uliifi,  are 
entitled  to  carry  on  sacli  ship  when  at  sea  the  tia;;  of  snch 
country,  and  snch  lla^j'  is  to  be  rey;arded  by  all  foreign  sov 
ereiyiis  as  the  badge  of  natioinility. 

Kveii  Hall  says  tiiat  the  i\;\i<;  is  only  the  apparent 
si^iii  of  the  nationality  of  a  shi|),  if  a  sliip  of  private 
ownei'sliip.  Its  master  is  not  an  a^^eiit  of  the  State,  as 
in  the  case  of  a  pnlilic  vessel. 

In  Tlir  Si.sfns  (:>  ('  Koh.,  1")'):  see  3  Kent,  13tl) 
Lord  Stowell  said: 

A  bill  of  sale  is  the  projter  title  to  which  the  maritime 
courts  of  all  coinitries  would  look.  It  is  the  iniiversal  instru 
meiit  of  the  transfer  of  ships  in  the  u.sage  of  all  uniritinie 
countries. 

The  tla^i',  then,  the  ontward  synd)ol  of  ownership, 
shonld  ]U'operlv  c(UTespond  with  the  hill  of  sale. 
(11  .\tty.  (Jenl."()p.,  T'J,  iSfJd.) 

And,  liiiidly,  we  have  on  the  (piestioii  -Iml^i'e  Story, 
an  anthority  on  international  law,  received  hy  Jiritish 
pnlilicists  and  jnrists,  as  well  as  hy  the  entire  world, 
as  in  the  front  rank,  where  there  an'  hnt  two — the 
{ii'eat  Lord  Stowell  and  Story. 

We  have  him,  too,  on  this  (pu'stion,  not  as  a  lext 
writer,  i»ut  from  the  bench  of  the  Supreme  Court  of 
the  I'nitetl  States,  deliverin^i'  the  ju(l;>inent  of  that 
court  as  to  the  hnv  in  such  case  in  time  of  peace. 
(See  1")  IVters,  pp.  .')18-r»  13  supra;  U.  S.  r.  Armisted.) 

This  was  the  case  of  a  Spanish  re^jistered  and  doc- 
lunented  ship.  Not  only  was  she  documented  as  a 
Spanish  shi]»  and  as  Spanish  owned,  but,  by  treaty 
between  the  nations,  certain  privile^ies  were  ^juarau- 
teed  ships  of  either  nation  so  documented. 


VKSSKL8 — NATIONALITY    FOLLOWS   OWNEhSHlP, 

It  Wiis  licM  that  till'  rc^iistrv  iiiid  (lofimicnts— the 
sliiii's  |iii|H'i's — well'  I»iit  priiiiti  fill  if  I'vidciicc  ot'  S])iiii- 
isli  o\vncrslii|i,  iiiul  tin*  laii<;iiji;ic  of  the  court  was 
tliat  it  a  vi'sscl  uikIci' tliosc  (•ircmnstaiiccs  "slioiild  in 
reality  l»('Ion<i'  to  the  sultjccts  of  aiiollicr  nation  not 
cntitli'd  to  any  such  |»rivilc<>('s,  and  tlic  )»ro)»ri('toi's 
were  cnch-avorin}!' l»y  fraud  to  cover  tlu-ir  own  iUeyal 
acts  under  tlie  tia;;'  of  Spain,  there  can  lu'  no  douht 
that  it  would  l»e  the  duty  of  our  c(»urts  to  strip  otl' 
the  disguise." 

This  was  in  lime  of  peace,  and  Mr.  .lustice  Story 
comments  upon  that,  and  sa\s  that  the  alnive  is  the 
rule  in  time  of  peace. 

The  authorities  snhmitteil  on  this  stdiject  (at  p]). 
ll-4rt)  of  the  liritish  ar<iument  are  not  in  point,  and 
are  reviewed  as  follows: 

(<i)   1(!  Peters,  "Jl;") — ilosey  r.  Huchanan. 

This  was  a  domestic  litijjation  hetw^'cn  a  jud<inient 
<reditor  and  another,  and  inxolved  the  (piestion  of 
whether  the  re^iistry  of  a  transfer  of  a  ship  under  a 
Federal  statute  was  a  prerecpiisite  to  a  clianji'e  of 
ownership  as  against  creditors.  The  decision  was  that 
it  was  not,  and  the  coiu't  proceecled  to  sa\  that  re<:is- 
try  as  contemplated  by  the  Feth-ral  law  was  onlv  for 
the  purpose  of  <'onferrinji-  certain  privileiies  on  a  ship 
as  a  national  ship. 

(h)    U;  Wall.,  (ilO,  Crapo  r.  Kellev. 

'i'his  was  also  a  domestic  suit,  involvinj:'  a  conflict 
between  a  bankruptcy  a.ssi<>'nee  and  an  attachinji'  cred- 
itor. The  bankru)»tcy  assi<>-nee  wasappoint«'il  in  .Mas- 
sachusetts, and  the  creditor  attached  the  ship  in  New 
York.  Itwasaeld  "for  the  purposes  of  tin- suit"  that 
the  shi])  was  a  portion  of  the  territorv  of  .Massachu- 
setts, an<I  the  bankruptcy  assii>nment  passed  the  title 
as  ajiainst  the  attachment.     Nothinji'  else  was  decided. 

(r)  Catlett  v.  'i'he  Pacific  Companv  (I  Paine's 
C.  ('.,  r)94). 


7J» 


i!t1 


80  VESSELS — NATIONALITY    FOLLOWS   OWNERSHIP. 

It  iippcars  distinctly  from  the  docision  of  the  ('<nirt. 
in  tlic  opinion  printed,  tlisit  tlicro  tlu'  (piestion  Wii> 
wlu'tluT  tiic  implied  wiUTjnity  in  :i  policy  of  insm-- 
jnicc  tliiit  the  ship  wns  an  American  vessel  had  l)een 
complied  with.  It  api»eared,  as  stated,  that  she  was 
(1)  "■(hnicil  hji  Aninirtni  vH'i^nis"  and  (2)  It  inis 
^^riiiiri'ifiil"  that  if  she  also  had  an  American  register 
on  itoard,  it  wonld  have  been  a  compliance  with  the 
warranty.  The  es.seiilial  thin<;'  dis|tuted,  evidentlv, 
was  the  (pU'stion  of  American  ownership,  and  the 
effect  of  rcfiistrv  was  not  in  issne. 

If  this  case  is  snp|»osed  to  decide  that  <ii\  American 
re;;istry  is  cdndiisive  of  ownership,  it  mav  he  saiil  in 
passinji'  that  the  case  was  citnl  as  shedding-  some  lijilit 
on  the  sul>je«-t  (and  to  that  extent  jjrohablv  it  is  here) 
in  the  United  States  Sniireme  Court  on  the  arfiinneiit 
in  1,"»  l'«'ters,  r>lS,  sh/iki,  where  the  contention  there 
and  here  was  distinctly  overrulefl. 

('/)  The  texts  (pioted  from  in  all  of  folio  "»0  (pp. 
44-4rt),  Hritish  ai'^i'iniient,  do  not  appear  to  l»e  cited. 
Imt  it  is  assmned  that  they  refer  to  the  lliffiiiiiis  case 
already  discussed  in  this  ar^iunient. 

(')  Direct  issue  is  tak«'n  with  the  Hritish  ar^iiuuent 
(p.  4,5)  in  the  jtosition  that  the  same  principle  of  con- 
clusiveness applies  to  the  reji'istry  of  a  ship  as  to  nat- 
uralization papers,  and  if  the  ipiotation  from  Wharton 
(2  Whart.  Di;^'.,  304) — from  which  the  frajiinent  froin 
the  connnunication  of  Mr.  Kvarts  is  taken — had  been 
continued,  it  woultl  have  l)een  .seen  that  the  inviola- 
bility of  naturalization  jtapers  was  put  uj»on  entirely 
different  }iround. 

That  <;rotuid  was  this:  That  naturalization  was  a 
ciecree  or  judji'ment  issued  bv  a  compet«'nt  court  of 
the  ITniti'd  States,  and  that  therefore  tiie  executive 
department  of  the  (lovernment  could  not  for  itself,  or 
through  any  authority  to  an  international  conmiission 


Tlic  position  (tt"  the  rnitctl  States  licre,  lis  alwiiys, 
iiiiiv  aji'aiii  1k'  ivpcatcd. 

'hiat  nation  asserts  withont  <|Ua1ifi(>ation,  and  vitli 
enipliasis,  that  where  the  Ha<^'  floats  over  a  shijt  in  time 
of  peace,  any  other  nation  invades  the  deek  under  it 
at  its  peril. 

"  Till-  Kritisb  iirKiiiiumt  coiil'iises registry  with  "8hi|i'8  papers," enibrnc- 
ing  nntl  es^ieciiilly  iiieiiiiiii);  the  "Hen  letter"  or  "  Ship'spass,''  isNuetl  by 
the  HiivoreijLcn  authority  only  after  olhcinl  investigiitioii  ag  to  artiial 
ownership. 


n  s- 


-u 


VE8SKLS — NATIONALITY    Kf»LLOW.«<   OWNKKSHIP. 

authorize  an  inipiirv  <ioin}i'  Itehind  the  judfiiiieni  of 
such  a  conrt. 

It  is  not  within  tlic  jxiwer  ol'  tlio  iSecretiiry  of  State  to 
vacate  a  decree  of  naturalization  issued  by  a  coni])ctent 
court  of  tlu'  I'niti'd  Stales.  •  •  •  Tlie  ,jiid(;mciir  of  a 
court  K>'i>»tini;  to  nn  individual  the  ri^'hts  of  citt/enshi]>  is 
entitled  to  receive  tlie  respect  given  to  all  other  Judgments 
ren«lered  by  courts  <»f  coni])etent  Jurisdiction,  and  if  not 
impeachable  for  fraud,  is  conclusive  as  t.o  :ill  the  facts 
necessarily  passed  tipon.  (The  Secretary  of  State  to  Mr. 
Hamlin,  l*  VVhart.  IMg.,  p.  35.-..) 

Tliis  doctrine  is  fainihar  in  tlie  United  States  from 
tlie  leading-  case  in  the  Su|ireme  Court — "Spratt's 
Case." 

This  is  <|nit«'  a  diH'erent  principle  from  tinit  \vhi<'li 
Avould  he  applied  to  the  rej^istry  of  a  siiip,  with  which 
no  jutlicial  or  quasi-judicial  authority  has  anythin<^' 
to  do. 

The  executive  jtosition  of  tlu^  United  States  as  to 
what  is  a  test  of  nationality  is  stated  in  (!  Attorney- 
(Jeneral's  ()pinio]is  at  pa<i-es  (!41Mi,')2,  and  there  it  is 
found  in  agreement  with  the  Judiciarv  of  the  United 
States  that  the  test  of  nationality  is  ja-ivate  owner- 
.ship. 

It  follows  on  liritisli  and  American  authority  alike, 
thiit  ownership,  and  hoixi  Jidc  ownership,  and  not  reji- 
istrv,  c<»nfers  tiie  tifilit  to  carry  tiie  Ha^.* 


HI 


^   I  . 

,  it 
r 


S2  NOT   THK    nation's   CLAIMS. 

'riic  tlii;;'  iiml  not  tlic  re^iisfry  slioiilil  lie  jniiiinfmir 
evidence  ot"  n\viu'rslii|t.  If  it  sIkmiIM  liini  out,  Iiow- 
cvcr,  tliiit  the  Hii^i'  <li>cs  iu»t  truly  rcpn'scnt  tlic  iirtujil 
tiwucrsliip,  tlicrc  is  no  ;;rnuu<l  for  rfcliiuiiitiou  on 
lii'lialt'  of  the  owners  wlm  turn  out  to  !(«•  iu-tuiil  citi- 
/.♦•ns  or  sulijccts  (if  tlu'  uiition  so  inviidinji'  tlu'  sliip, 

Wliiitcvcr  tlit-rt'  uiiiy  lir  of  nlfront  to  tin*  \\i\><:  in 
such  !i  ciisc  is  wliully  a  i|U«-stion  lictwccn  nations, 
with  wiiich  privati'  |M'i>on>  Iiavc  notliiu''-  to  i|o  ami 
fur  which  they  can  make  no  |>iolit. 

Ttuhtso  wonhl  lie  to  cK'vatc  the  incidental  inferior 
private  interest  into  the  place  of  the  pannnount 
]iulilic  one. 

To  do  so  in  cases  where  satisfaction  for  otl'ended 
dijiiiity  is  due  would  lie  to  demand  for  one  individual 
the  reparation  owin;;-  to  all  the  people  of  a  ^ireat 
nation.  Take  the  case  of  the  Mritish  ship  Tnitf, 
where  an  An\erican  cruiser  took  from  under  the 
Uritisji  tla;;'  the  .\mericau  citizens  .Mason  and  Slidell. 

This  liein.ii'  an  act  of  a  pulilic  ship  of  the  I'nited 
States,  that  coniUr\  was.  of  course,  responsilile  for  it. 

The  proceeding-  was  variously  designated  as  "wan- 
ton," as  a  '"wanton  insidt,"  "piratical  attack,"*  and 
so  on.  .\n  apology  was  demanded  liy  (Jreat  Hritain 
and  a  return  of  .Mason  and  Slidell  to  the  protection 
of  tile  Mritish  flay',  lint  the  su;i';i»'stion  was  never 
ijreamed  of  that  .Mason  and  Slidell  coidd  have  had 
any  claim  throu<ih  (irt-at  Mritain  or  otherwise  tor 
damafics,  tor  tlu'ir  imprisoiunent  and  treatment,  from 
the  I'nited  States. 

Tile  case  <if  Tlir  ('(irnlnoA  The  vessel  was  an 
American  sliip  under  the  .\merican  Hay  and  in  Ameri- 
can waters.  (Jreat  Hritain  sent  her  military  ftirce 
under  .McLeod  into  the  territory  of  the  I'nite*!  States 
and  destroyed  the  ship. 

•Sci'  Hiit.  For.  Stiitf  Papers,  '•  Tnnt." 

•See  lull  lii.stmy  cil'  the  c.ise  y\  sir  iShcrstou  Unker"s  lliillei^k,  p.  477, 
■iikI  Wharton's  Oi};..  ^^  *  -I,  ItlOi. 


!^ 


\\i 


NOT   THE   nation's   CLAIMS. 

(ir«'iif  Mritiiiii  iickiiowlrtlfictl  Iut  rt'spoiisihility  tor 
file  acts  of  .M«-I,cii)t,  iiixl  flit-  I'liitt'd  Stiitcs  <l»'iiimuUMl 
siitistiH'tinii  t'iirtli«-  iinVoiit  to  the  Hii<>' iiiid  tlu*  iiiviisioii 
ot"  tcrritoi'v.  (Irt'jit  Hiitnin  asMTtrd  tli»'  ri;>Iit  toi-iitrr 
the  territory  on  tlu'  ^ztouikI  of  s«'lf-j»n's»'rvatioii,  a<l- 
(liit'iii}^'  «'vi(lciit'('  of  an  insiUTcction,  and  tliat  7'lir 
('(irnliiir  was  aiilinji'  it. 

Tiu'  matter  was  satisfactorily  adjusted  between  tlu- 
(lovernnieiits.  In  tlie  meantime,  liowever,  M«"Leod, 
tlie  Hritisli  subject,  had  been  arrested  on  Anieri«'an 
soil  and  sutl'ered  a  lon<>'  term  of  imitrisonment  und«'r 
the  authority  of  tlie  State  of  New  York. 

Hoth  (Jovernments — the  I'nited  States  and  (Jreat 
Britain — asserted  that  imprisonment  to  liave  been 
uidawful,  as  the  act  of  Mj-Leod  had  been  assumed  by 
(Jreat  Britain  as  lier  act. 

Sid)se(iuentlv,  un(U'r  the  .Mixed  Commission  (»f 
18"»3,*  Great  Mritain  made  rechimation  for  McLeod 
for  »hnna;>'es. 

It  was  hehl  by  the  British  umi)ire  tliat  it  could  not 
be  brouj>"ht  before  th»'c<»mmissi<»ner.s  as  a  privateclaim, 
bee.  ise  it  grew  out  of  a  purely  national  (pU'stiou 
which  had  been  adjusted  between  the  two  «'ountries. 

The  case  will  serve  for  further  illu.stration  on  the 
(piestions  before  these  IIi<rh  C'onnnissioners  as  to  the 
claimants  of  ori<;-inal  American  allejiiance  domiciled 
on  British  soil.  Aside  from  the  adjustment  of  the 
question  of  national  attVont,  suppose  that  a  British 
subject  domiciled  in  the  Tnited  States,  and  unnatu- 
ralized there,  while  in  the  a<'t  of  aidin<>°  the  insurrec- 
tion a^i'ainst  (ireat  Britain,  had  been  damaji'ed  in  his 
j)erson  or  property  ri<jfhts  by  McLeod's  invasion. 
(Jould  it  be  seriously  contended  that  he  c<mld  have 
.successfully  made  reclamation  tln'oufjh  the  United 
States  a<iainst  (Ireat  Britain  for  his  injuries  .suttered 
while  actinjf  in  violation  of  his  ori}>'inal  alle<>'iance  to 
Great  Britain  ? 


s."> 


!:: 


'  See  Keport  of  A^ent  of  the  ITiiited  Stnteg,  314. 


St 


NOT   THK    NATIOSH   CI.AIMH. 


Or  .•.ii|i|M>s('  I'lti  ('iiriiliiiii  liml,  ns  n  iimttcr  of  f'lict, 
tiinifil  out  til  lit-  till*  |)r<i|)fi-t\  of  siu'li  llritisli  siiltjcrt 
Ic^jfillx  ilitmirilcd  in  tin-  I'liitt'd  Stiitcs,  or  uf  jiii 
Aincriciiii  riti/.t'ii  It-Miilh-  iloinirilfd  in  (Jrciit  llritjiiu. 
< 'iiiiiti  citlici-  lijivf  inji<)t'  i-criinntition  !i;>'iiiiist  (Srciit 
Urifiiin  tlnoM;:li  the  Initttl  Stiitcs.' 

<  hi  ilic  ilistiiirtinn  Itctwcfii  i|UfnliiinH  of  tli*'  Ivinil 
!iri>in;i'  iM'twtM-n  Uiitioiis  in  r('S|(cct  nt'  tiic  in\  it>liiliilit\ 
ut' nntionii!  territory  ionl  tlit-  *>nil)li-in  of  tlit-  niitioiijil 
ili^i'iiity,  ini<l  tlios*-  in  rt's|MM't  ot'tlif  rljiinis  nt  imliviil- 
Uiil  citizens  |iresente<|  liy  one  ntition  for  |iei-siiniil  i>r 
|irMoert\  injuries  )i;;iiinst  nnotlier.  it  is  lnoiitll\  iiml 
well  (iniwn  liy  ronnsel  in  tlie  tiise  nf  .Melln^li  nnil 
utiiers  iiL^-.iinst  'I'lie  I'liiteil  St.ites,  Itefoic  tile  .Mixed 
( 'uniiiiissiun  niider  tlie  Treiity  of  Wiisjiinjiton  (re|iiirt 
of  l)iitis|i  ii^i'ent.  p.  6(»7,  Appendix  No.  7,  '>-*),  jis  fol- 
lows: 

Till'  i|iifstioii  iielori'  tliis  Ciw  issioii  is  not  wlH'tlicr  (ireat 
lii'itain  liii.-i  siitVcicil  •ri'i«>vtiiii  i  insult  at  tlir  liaiidH  of  the 
riiitcil  States  ill  till-  fast'  in  ii(!li  r<'(^!aiiiation  is  sou<;'lit. 
It'  it  were  so,  it  woiilil  be  entirely  iiiiniaterial  wliftlMT  tliu 
iiitostatf.  SlnMiiiaii,  \v»'it'  a  Uritisli  suliicct  or  no,  ho  haviny 
Ix'fii  aiK'stnl  on  liritisli  .soil.  Tlie  injury  to  (iit-at  liritaiii 
was  liv  the  iiiilawt'ul  invasion  of  Ium'  territory  and  tin*  taking 
tlu'iic<>  liy  for( fa  |it>rson  iinilt>r  the  ]>rotcction  of  Iter  laws, 

N\  licthcr  that  iicrtioii  was  an  Aiiifrican  citi/cn  or  Itritisli 
snlijoct  is  of  no  iinixiitaiiL-e.  She  lias  the  saint'  ri;;ht  of  coin- 
jilaint  af;ainst  the  InitiMl  iSlntcs  for  the  unlawful  an<l  wroii^- 
fiil  arrest  of  an  Aiiierican  citi/.eii  u|>iiii  her  soil,  and  his 
removal  liy  force  from  the  protoction  of  her  laws,  as  nlie 
would  have  for  the  Hiune  treatment  of  a  Itritish  snbjeet. 

Hnt  it  surely  can  not  be  contended  that,  by  reason  of  sueh 
injury  to  the  soveiei};nty  of  (ireat  l>rilaiii,  Sherman,  if  in 
fact  an  Anieriean  <'iti/.en,  would  have  a  standing  before  this 
tribunal  to  make  reelaniation  under  the  treaty. 

Jle  woiiK  have  t<i  stand  upon  his  character  as  a  British 
subject  and  uiion  that  only  ;  and  it  would  be  only  by  virtue 
of  such  national  character  that  he  could  make  reclamation 
here. 

This  particular  flaiin,  asiipjienrs  liy  tli"  report,  i.  e., 

'  raliiimciitiiry  I'aiiors,  North  Aiiirrici'.  No.  '2,  lS7t. 


\. 


t  ''  si 


Nut  thk  nation  s  claims. 

iliiit  )it°  .Mrs.  Slicniiiiii,  WHS  iitiniiiiiuMisiy  ilisiillnwcil 
liy  tilt'  ( 'oiiiiiiissitiiu'rs. 

TIk'  \('1  V  |iiiiiit  WHS  fliilMinitcly  stiiffil  jiml  ilccidrii 
liv  Itiiruii  Itiiiiir,  tilt*  iiiii|iin',  in  rltiiins  ill  iiimI  1ir>, 
( 'iiiii|ilicll  mill  otiifi's  r,  Sjijiiii,  iniilcr  tli«>  Sptiiiisli  ;iii<l 
Ann  ritiiii  ( 'niiiiiiissinu  nt'  l'\'l»rii!iry  12.  1S7I. 

riic  ship  Miini  l.oiitll  \v!is  iimlcr  flic  .\iiifriciiii 
ihi;;'  iind  nii  tlif  lii<zli  s*>iis,  iliily  )li)riiiiifiit('il  ii.s  ni! 
Aiiici'iriiii  sliiji.  Tlic  iiiii|>ir«>  liiuls  distiiirtly  tliiit  tlir 
\inliltioll  ottlic  tlil^i-  Wils  ill)  ullt'llSf  ii;iiiilist  tllf  so\  cr- 
ri;;iity  ut'  till'  I'liitcil  Stiitcs.  Tlic  rliiiiii  wiis  pni- 
^(•iih'tl  l»y  tiic  I  iiitfil  Sliitt's,  iis  fliiiiiis  jirc  |in'sciitf(l 
here,  !ls  uiU'  oil  iicfiiliiit  nt'  tile  nwili  r. 

Tllf  iiiiipirc  siiys: 

TIh'  iiiiipirt'  ciiii  not  \n\  \c}iU\iu»U']y  culled  upon  to  treat 
lliis  as  a  case  ol'  tlie  Ihiiti'il  States  aj^aiiLst  Spain  liaviii);  tor 
lis  (I'leet  object  a  Hiiitable  reparation  tor  the  olt'eiuletl  ili^nity 
(if    iieir  lla^. 

Ill  siicli  a  case  the  reyiilnrity  ot'  tlie  capture  would  con- 
>litiite  the  principal  i|Uestion  to  lie  considered — the  per 
~iiiiial  situation  of  tlu^  owners  of  tlie  property  hecoinin^ 
siibordinalt'. 

Hut  no  such  vttHf  III'  till-  I'liitfil  Stairs  afini list  Simiii  has  hie ii 
III-  riiiihl,  ill  tllf  opiiiiini  It/'  tllf  lliiipirr,  iiiopfilj/  Iw  iirimiltfil 
til  Ih'iH  Iriliiiiiul. 

\t  aiiotluT  place  lie  says  that  it  is — 

irrelevant  under  the  circuniHtances  of  tiiis  case  to  state 
iiow  far,  if  at  all,  the  acts  of  tlie  Spanish  forces  were  nnau- 
tliori/.ed  liy  iiiternationai  law,  and  such  as  to  create  a  claim 
on  the  part  of  ti  i'  I'tiited  States  a;{aiiist  Spain  in  behalf  of 
I  he  ott'endcd  8ovcreiu;nty  of  their  llatj. 

i'lir  claiiii  was  tlicrcton*  dismissed  tin  tlie  ;:niiind 
that  altli(Ui<;li  the  seizure  was  outside  ot"  the  jurisdic- 
tion of  Siiain,  and  on  the  lii<>li  .seas,  vet,  as  it  trans- 


86 


piled  that  f/ir  oinirrs  were  eii^ia^i'ed  in  an  enterprise 
ilawt'id  as  a;;aiiist  Spain,  the    Tnited   States  could 


III 

lint  recover  on  their  aecoinit  mnler 

veiition. 


theC 


anus  i  on 


mm 


T 


8ti      OONn.USlON    ON    KKKECT   OF    liOMICILE    AND   CITIZENSHIP. 


CONCLUSION  ON  THE   QUESTION  OF  AMERICAN   CITI- 
ZENSHIP AND  O'WNERSHIP. 

Tlir  s/icci/ii-  cldiiii.s  cliniiifittril. 

The  (VM»|H'r('liiiiiis:  Tlii'  (inicr,  Dolftliiii,  Amid  linl;. 
iiiid  tlic  Sdifiriuil. 

'rile  AlcXiimliT  Fi-Miik  cliiiins:  Tlie  Alfrrd  Addui^. 
llldil;  DiditiiiufL  seized  .Iiily  11,  18S!I,  and  tlie  Lili/. 

Tile  Andrew  J.  Hi-clitel  elainis:  The  Cdrolciid  ami 
I'athdiiiln: 

Tlie  Daniel  McLean  claim:   (The  larji'er)  Tridiiijih. 

The  Ah'xander  .McLean  claims:  Tlu'  Oiiirdn/  and 
Fdriidiiff. 

Tiie  tore<i(»in<i'  shi|)s  were  all  seii/.ed  in  the  years 
18,S6,  ISHT,  and  18SII,  and  appear  as  follows  iii  the 
sclu'dnle  t»t'  iJritish  claims  tiled  at  Paris  (pp.  1  to  (10, 
imdusive),  as  referred  to  this  Connnission  nnder  the 
ctMivention  as  owned  and  claimed  for  as  follows: 

The  Cooper  claims: 

As  to  the  <ird(<\  Dalpliiii,  Amid  link,  and  Sd//d-dnl, 
tho  entire  ownership  and  entire  claim  for  compensati(»n 
for  the  seiznre  are  in  Thomas  IL  ("ooper. 

Tlu'  Alexander  Frank  claims: 

As  to  the  Alfred  .lf/^/»/.s,(Jntman,owni'r,  his  partner, 
the  said  Frank,  l»ein<i' «Minally  interested  with  (Jutnian 
in  the  resnlts  of  tiie  sealinj>'  voya^ic 

As  to  the  Jl/dcic  IHdiiioiid,  '*re;iistered"  owner  .Morris 
.Moss. 

As  to  the  /«////,  "re^i'istered  "  owner  Morris  Moss, 

The  .Vndrew  .L  Hechtel  claims: 

As  to  tlu'  CdiDlriid,  the  entire  ownership  in  Mnnsie. 

,\s  to  the  I'idli/iiidn;  ownership  half  in  the  partner- 
ship, and  a  ipiarter  each  in  the  individual  nuMnhers 
of  the  lirm  of  Canie  i\c  Mnnsie. 

The  haniel  .Mcl^ean  claim: 

As  to  the  lar;:»'r  Tiiiiiiiidi,'2\  shares  in  Kd^arCrowc 
Haker:  '_*■_'  shares  in  Daniel  .McLean,  and  21  shares 
in  one  (!il)son  and  Hlackett. 


I; 


CONCLUSION'    OX    KKl'KCT    OK    DOMICILK    AND    CITIZENSiUl'.       87 

'V\w  Alcxiiiulfr  .MrKciiii  chiinis: 

As  to  tlic  (hiiranl,  Cliiirlcs  Sjiriii;:  as  sole  uwiut 
;H:(I  clilillliint. 

As  to  tlic  Fiiroinifc,  Cluirlc.*  Spring'  as  sole  owner 
.111(1  clainiaiit. 

It  a|t|»('ars  l)v  the  tt'stiiiiuiiy  citol  in  tliis  record 
tlinr  tl'.e  I'liitcd  States,  uiidei-  tlie  ri<ilit  reserved  to 
tlieiii  l»y  the  Paris  Award  and  tliis  Convention,  in 
contradietion  ot"  the  al)ove 'sche(hde  as  presented  at 
I'aris,  have  shown  aelnal  ownership  in  American 
citizens,  as  of  tlie  time  of"  sei/.nre,  and  tlie  actnal 
claimants  at  tlie  time  ot"  the  ('onventi(»n,  as  follows: 

The  Alj'irtI  Aildiiis,  Lilji,  and  the  Uliith  liimiitniil  \\\ 
Alexander  Krank,  an  American  citizen. 

The  ('t(iolriit(  and  I'dUi/iiiilrr  in  whole  or  in  part  in 
A.  .1.  I»echtel,  an  American  citizen. 

The  TriKiHiih,  '2'2  shares  ont  ot'  (!4  in  all  in  l>aniel 
McLean,  claimed  to  he  a  political  and  civil  citizen  ol 
the  I'nited  States,  and  in  any  case  a  civil  citizi'ii 
domi'.'iled  in  the  United  States. 

Tlu'  (hiiranl  and  the  luiidiiritc  one-halt'  in  Alex- 
iinder  M(d.ean,  an  American  citizen  dt>micile(l  in  the 
I'nited  States. 

it  may  he  slatetl  in  this  connection  as  the  rnle  in 
such  cases,  to  which  there  have  been  no  t'xceptions 
under  prior  commissions,  an.d  as  a  proposition  which 
lairies  its  own  demonsti'ation,  that  to  entitle  that 
natioi"  to  make  reclamation  tor  anyone  as  ii  person 
"ill  whose  hi'halt'  (Jreat  Ihitain  is  entitled  to  claim 
compensation  from  the  rnite<l  States,"  the  hnrdeii  is 


iiiion 


that 


nation  to  «'stal»lisli   at   tlie  ver\   outset  two 


lim;H-s: 

First,  and  liefore  all  els«',  fliat  at  tlir  linn'  oj' the  ('on- 
iiilinii  <ni(l  (if  till'  iiii'snifiifioii  nf'thr  rlniiii  the  claimant 
A  as  under  the  prott'ction  of  (Jreat  IJritaiu  as  a  citizen, 
vitli  a  le<i'al  domicile  in  the  doininions  of  that  nation 
ir  not  in  the  I'liited  States; 


88      CONCLUSION    ON    EKFECT    OF    DOMICILE    ANU    CITIZENSHII'. 


And  st'Cdiid,  it  imist  also  be  cstiiljlislicd  tliat  )it  the 
tiiiU'  of  the  injury  of  wliicli  coiiipliiint  is  iiiadi'  the 
[KTson  was  uiidtT  tlii'  ])rot('ctioii  of  (Jivat  Uritain  as 
a  citiyccii,  and  doniicili-d  within  Iicr  dominions,  or  not 
in  tlic  I'nitcd  States,  or,  as  tlic  t'tiuivak'Ut  of  domicile 
and  citi/.i-nsliij),  was  on  hoard  a  slii]),  as  one  of  the 
ollieers  or  crew,  owned  by  a  British  subject  in  Hritish 
territoiy  or  on  the  hiyh  seas. 

IJotli  conditions  nuist  concur. 

It  need  not  be  arj^iied  that  a  person  who  may  have 
been  injured  by  a  nation  can  n<tt  afterwards  become 
naturalized  or  domiciled  in  that  nation,  and  thus 
become  a  ]tolitical  or  civil  citizen,  or  both,  and  there- 
after invoke  the  aid  of  the  country  of  his  orij>inal 
citizenship  ajiainst  the  nation  of  hit;  existing-  citizen- 
ship. 

And  so  the  Convention  provides,  Article  I,  that  the 
])ersons  for  whom  reclamation  nuiy  he  made  by  (ireat 
Mritain  must  be  persons  who  then,  at  the  time  of  the 
convi'Ution  (an<l  as  held  in  other  Connnissions,  at  the 
time  of  the  presentation  of  the  (daim),  were  under  the 
protection  of  (iicat  Britain  in  virtue  of  a  claim  of 
either  civil  or  piditical  citizen.'<hip,  as  above  defined. 

Ili're,  a;iain,  the  incon^ruily,  not  to  sav  absurdity, 
of  Clreat  Britain's  position  as  to  Cooper  is  manifest. 

A  resident  and  a  civil  citizen  of  the  I'nited  States 
since  1S"»4.  with  the  courts  open  to  him  as  to  an 
American  native-born  citizen,  enjoyinj:'  t!  ■  protection 
of  its  laws,  without  returnin^f  to  his  country  of 
ori;^inal  citizenship  to  present  this  claim,  he  remains 
a  citizen  of  the  I'nited  States,  and  instead  of  appeal- 
in;.''  for  relief  for  his  alleji'ed  wrong's  to  that  (Jovcrn- 
nu'i  t,  or  its  c<uirts,  he  invokes  a  foreijiii  nation  to  aiil 
him  in  recovi'rin;^'  from  the  I'nited  States. 

'I'lie  rule  is  undoubted  and  universally  acknowl- 
edji'ed  that  the  recourse  of  a  domicile(l  person  foi' 
injuries  ajiiiinst  the  (iovernment  of  his  domicile  is  in 


CONCLUSION    ON    KFFECT    Ol'    DOMICILE    AND    CITIZENSHII'. 

\\h'  courts  of  tliiit  rountrv.  Tlii'  principle  is  stati'il 
in  Wharton  as  a])[>licil  in  <»ur  relations  with  Great 
Britain : 

A  citizen  of  tlie  United  States  residiiifj  in  Canada,  wliose 
property  there  situate  lias  been  destroyed  and  pillaged  by 
Britisli  trooits,  must  Hrst  aeeiv  redress  from  the  tribunals  of 
the  country  under  whose  laws  lie  has  settled.  (2  Whart. 
l>ig.,  sec.  241,  and  see  sec.  22(!.) 

Kenworthy's  t*ase,  Mixeil  Coinmission,  1853; 
llally  et  al.  Connnissiun,  1871;  see  <>  l'ai»ers.  <'tc., 
Wasliin^ton,  pp.  19-20;  .Vnderson's  Case,  id.;  Hoyd's 
Case,  British  Agent's  Kepoit,  p.  12. 

As  heretofore  seen  in  such  cases,  there  can  he  no 
"iTound  tor  intervention  hy  tlie  country  of  ori;iinal 
alleji'iance  unless  there  lie  discriniiiiation  as  ajininst 
ihe  person  Itecause  of  his  political  nationality  as  be- 
t\vee!\  him  and  citizensof  the  country  of  liis domicile. 

It  appears  hy  the  authorities  hereinhefore  cited  on 
the  sul)ject  of  domicile  that  the  pi'esumption  is  that  a 
citizen  of  a  country  has  his  residence  and  leji'al  dom- 
icile in  the  c(tuntry  of  his  political  citizenship,  a*nd 
that  the  l)in'den  t(»  estaldish  domicile  in  anv  other 
country  is  upon  the  ])erson  alleiiin^'  it.  'i'he  l)U.rden 
may  l)e  at  once  shifted  hy  showinu'  actual  residence, 
MS  has  Ikhmi  seen,  but  if  there  lie  anythinji'  i'.i  the 
point  made  in  the  opposin;^-  ar^iinnent  as  to  Frank, 
the  Mcl.,eans,  and  Becht(d  <in  their  alleged  domicile 
in  (treat  Britain  a;;ainst  the  contention  of  the  I'nited 
States  to  the  contrary  as  heretofore  preseiitcfl,  then 
the  hiu'den  would  certainly  he  upon  (Jreat  Britain  to 
estalilish  the  fact  of  domicile  couclusiyely. 

On  the  record  there  is  no  pretense  tif  the  proof  of 
Frank's  ihimicile  in  Victoria, 
domicile  for  purposes  oi 
Residence  and  home  is  the  supreme  test  <if  domicile. 
(liaUeck,  Ch.  X.XIX,  sec.  13(Am.   Fd.),  and  case 
I'liill 


89 


here  is  no  sucli  thiii}^ 
as  a  domicile  for  purposes  of  trade  without  rcsidn 


'■IK 


unore 


■1). 


•  lUiicne,  sees. 
-12 


•)•) 


•Ji,  •J-J4,  2."i(;.  -i.'is.) 


wmw 


I  ■• 


90      CONCLUSION   ON    EFFECT   OF   DOMICILE  AND   CITIZENSHIP. 

It  appears  that  he  was  a  »>artuer  of  Gutman,  Ijut 
there  is  no  proof  whatever  that  he  was  a  resident  of 
Victoria,  as  he  was  not.     (Hec<tr<l,  19!)3,  Hne  oO.) 

Q.  In  November,  1888,  were  you  a  resident  of  Victoria? 

A.  I  believe  I  was;  am  not  ((uite  positive  about  tbe  time. 
1  went  to  San  Francisco  either  tbe  latter  part  of  1888  or  early 
part  of  188it,  and  I  stayed  tbere  several  months. 

Th's  is  all  there  is  bearing  on  residence. 

Appended  hereto,  (pai^e — )  entitled  "Appendix  2," 
is  ))resente<l  all  the  testimony  in  the  record,  and  every 
item  of  it  Ijeariny  upon  the  citizenship  or  residence 
of  Alexan<ler  Frank,  Andrew  J.  Hechtel,  Daniel  Mc- 
Lean, Alexander  McLean,  and  Thomas  H.  Co(»per. 

As  to  Hechtel,  there  is  no  conclusion  upon  his  tes- 
timony, l)ecau.se  he  contradicts  himself  directly  by  his 
several  oaths,  and  is  .shown  hereafter  under  the  head, 
"Carolena,"  to  be  unworthy  of  credit.  Fal,siis  in  Uiio, 
fafsHs  in  omnibus.  His  hotel  business  is  no  evidence 
of  domicile.  See  authorities  siqira  prux.  In  an  affi- 
davit he  has  sworn  that  he  was  at  one  timea  resident  of 
California,  and  afterwards,  in  anaffidavit,  as  in  his  testi- 
mony here,  covering-  the  peri(»d  of  his  affidavit  in  Cali- 
fornia, he  swears  thathe  was  a  resident  of  Victoria.  His 
affidavit  to  the  contrary  in  Victoria  is  not  evidence  for 
him,  and  his  admission  of  residence  in  (.'alifornia  is  evi- 
dence here.  From  the  witness  box  at  Victoria,  through- 
''"lieiHiUL'.''  •••^*t  his  examination,  he  was  duiid*  on  the  (piestion  of 
his  residence  in  California;  while  Munsie  testifies  to 
the  time  when  Mechtel  was  living- in  Cidifornia,  in  cor- 
roboration of  the  admission  by  affidavit.  Ilisowner- 
shij)  of  real  estate  is  no  evidence  of  domicile.  (Sir 
W.  Scott  in  77/r  Ihn'  (irhrordcrs,  4  Hoi).,  p.  ■_*;{").) 

There  is  no  evidence  that  either  Frank  or  Mechtel  were 
domiciled  iuCireat  Hritainatthetimeof  tlieConvcntion. 
Daniel  McLean, asappears  l»y  the  record, becamea  iiat- 
iu"ali/,e<l  citizen  of  the  L'nited  Stateson(  )ctol)er  "»,  1(S,S2. 
and  he  became  such  under  the  Naturalization  Treaty 
between  (Jreat  liritain  and  the  United  States  of  lS7t). 


mi 


CONCLUSION   ON    KFFECT   OF    DOMICILE   AND   CITIZENSHIP.      91 


,689. 


lie  ntiiM  not  suiTeiidor  that  citizeusliij)  jind  return 
to  Iii.s  allejiiance  to  (Jreat  liritain  excej)!  as  pro- 
vided in  tliat  treaty,  and  lii.s  form  of  ))e(roniin<i'  natu- 
ralized in  (treat  Hritain  on  (H-tober  1(1,  188(!,  was 
inetfeetive. 

There  is  not  a  word  as  to  his  resi(h'n('e  in  Victoria 
in  the  re<'ord,  hut  tliere  is  a  statement  of  his  resi- 
dence in  San  Franci.sco  in  lS!t2,  and  the  testimony 
of  liuhy  that  Daniel  McLean  appeared  at  Victoria'*"'- 
in  1MS3  as  one  of  the  crew  of  the  American  ves.sel 
the  Cifi/ofSaii  J>ief/o.  See.\pp.2. 

As  to  Alexander  McLean's  American  citizenship 
there  is  no  (piestion;  and  while  tlu*  testimonv  as  to 
him  is  the  stronj>e.st  in  the  record  as  to  anv  residence 
in  Victoria  at  the  time  (d"  the  seizure  of  the  ships 
he  was  interested  in,  there  is  notpiestion  whatever  that 
for  a  loiiji"  time  prior  to  the  ("onvention,  at  its  date, 
and  ever  since  he  has  had  his  domicile  in  the  city  of 
San  Francisco. 

( )n  the  (piestion  of  Inirden  of  proof  to  establish  the 
relation  to  a  person  wliicli  would  «'nal)le  Great  Hrit- 
ain  to  make  reclamation,  it  is  settled  hv  the  decisions 
under  all  the  ("onnnissions  heretofore  referred  to.* 

It  follows,  that  if  (treat  Mritain  shall  sliift  from  the 
jiTound  heretofore  taken,  that  ownership  in  that  nation's 
political  subjects  is  conclude<l  bv  showinj>'  a  ship's  re<>'- 
ister,  and  now  claim  the  ri<iht  to  protect  American 
citizens  as  a<>ainst  their  own  country  because  of  their 
domicile  (a  proposition  never  heard  of  lu'tbre  except 
in  the  ar;;ument  here),  the  chan,i>-e  should  start  from 
the  postulate  as  to  them,  that  their  domicile  by  resi- 
dence has  been  conclusively  shown,  both  at  the  time 
<»f  the  seizure,  and  at  thc^  time  of  the  treaty  and  pre- 
sentation of  the  claims. 

The  (piestion  remains  as  to  the  effect  of  part  own- 
ership by  an  American  citizen  with  a  Hritish  sul)ject. 

■  St'oartjiiineiit — citiitioii  of  Sir  Uouiiiloll  I'uliiior.  piipers,  otc    Treaty 
iif  Wnsliiiigton,  vol.  I{,  p.  25,  lust  pariigriiph  citrd. 


mi 


fll  "iwlf 


92      CONCLUSION    OX    EFFECT   OF   DOMICILE   AND   CITIZENSHIP. 

It'  jt>int  owners  or  partners,  the  whole  chum  must  tail 
beyond  (juestion. 

A  recoverv  ean  not  in  such  ease  he  had  for  a  moietv 
by  the  ndes  of  international  or  eomnum  law. 

The  right  to  thi'  protection  of  this  Govemineiit  may  bo 

acquired  by  birth,  by  naturalization,  or  in  Home  cases  and 

for  some  purposes  by  domicile  in  the  United  States.    No 

other  mode  occurs  to  me,  nor  do  I  now  perceive  the  authority 

of  an  officer  of  this  (Jovcrnment,  except  in  virtue  of  a  treaty 

Mr.l'ish.Sec.  t'l"  otl'C''  positive  legi.slation,  to  bring  a  new  subject  within 

of  .State,  the  sphere  of  its  obligations.    Least  of  all  can  I  discern  any 

to  Mr.  pof.jtjulty  in  a  private  (iitizen  to  spread  the  protection  of  liis 

p°"8.^"J^;  Government  over  a  third  per.son  by  adopting  him  as  a  part 

"  ner  in  a  commercial  establishment  in  foreign  parts. 


pan. 


Whatever  the  rule,  however,  ou  this  subject,  tlu' 
United  States  desires  to  ur^e  it  only  as  aj^ainst  those 
persons  who  have  s"*fered  their  names  to  be  used  l)y 
American  citizens,  or  have  permitted  the  investments 
of  American  citizens,  with  them  jointly,  havinji'  the 
object  in  view  to  aid  such  citizens  to  violate  the  laws 
of  their  coiuitry  under  cover  of  such  arrangements, 
and  have  befouled  their  consciences  in  the  effort  to 
sustain  the  frauds.  This  objection  is  not  ur<>ed  l)y 
the  United  States  as  a<>'ainst  the  owners  of  the  Tri- 
ii)nj)h,  in  respect  of  the  shares  in  the  former  held 
by  Mr.  Hak  r  and  his  associates,  who  were  British 
subjects,  and  in  respect  of  the  interest  in  the  On- 
wan/  owned  bv  Mr.  Sprin<i',  who  was  also  a  liritisli 
subject.  If  it  slnmld  seem  to  the  Commissioners 
that  there  is  anythin<i'  of  compensation  to  be  found 
due  on  account  of  the  Farourifr  on  the  claim  as 
finally  testified  to  l>y  her  owners  at  Vict(»ria,  Mr. 
Sin'inji's  interest  sh(»uld  l)e  treated  like  that  in  the 
Omranl.  In  sucli  cases,  however,  the  rpiestion  (if 
jurisdiction  remains  for  the  C'ounnissioners  to  decide, 
as  it  can  not  be  waived  l)y  the  coun.sel  for  the  United 
States. 


DAMAGES — PR08PKCTIVE   CATCH. 


93 


COMPENSATION,  OR  THE  MEASURE  OF  DAMAGES. 

I'luler  this  lieud  it  is  jn'oposed  first  to  consider  the 
question  of 

Prospective  catch  and  loss  oj  catch.* 

Tlie  theory  of  all  hiw  on  the  snl)ject  of  the  htss  of 

personal  property,  is,  that  tlie  i>arty  deprived  (»f  it  or 

al)an(h)nin<''  it  to  the  e(»nverter  may  immediately  sup- 

ily  its  place  in  the  market  with  its  money  valne  if 

le  sees  fit;  and  therefore  his  nieasnre  of  recovery  is 

iniited  to  the  value  of  the  ])roperty  lost. 

The  following  i)ro])ositions  are  maintained  under 
the  present  convention: 

{(hic) 

The  claim  for  prospective  catch  is  settled  advei'sely 
to  <^reat  Britain  by  what  has  been  seen  is  conven- 
tional oi  positive  international  law,  fixed  and  bindin<>' 
on  both  nations,  viz.,  a  decision  of  the  precise  question 
on  analogous  facts  by  the  adjudication  of  the  Tril>u- 
nal  of  Arbitration  at  Geneva. 


(Two.) 

The  claim  for  prospective  catch,  prospective  prof- 
its, and  the  like,  in  cases  of  marine  torts  or  cajttures 
on  the  high  seas,  however  tortious,  has  never  been 
allowetl  bv  any  tribunal  or  court  administering  inter- 
national law,  or  by  any  authoritative  judicial  judg- 
ment of  either  country,  whether  administering  inter- 
national or  the  nmnicipal  common  law. 

And  of  these  in  their  order. 

*  See  the  coutiiigeiicies  anil  uucortnintics  of  pelagic  sealing,  ji.  177,  infra. 


94 


DAMAGES — PR08PECTIVK   CATCH. 


{ONE.) 
Tlic  JiidfiiHrid  of  GoHcni. 

liy  the  treaty  of  \Vasliiii}>-t()ii,  Article  VI,  it  was 
|)r(»vi<led  as  follows: 

In  deciding  the  matters  subinitteu  to  the  arbitrators,  tliey 
shall  be  governed  by  the  following  three  rules,  which  are 
agretKl  upon  by  the  high  contracting  parties  as  rules  to  be 
taken  as  ap{iiicable  to  the  case,  an>l  by  such  priiiciplen  of  inter- 
natioiKil  law  not  inconsixtent  thvreivith  ks  the  arhitratois  shall 
determine  to  hare  been  applieahlc  to  the  vase. 

Then  follow  the  three  rules  as  to  duties  of  neu- 
trals in  time  of  war;  and  the  article  closes  with  this 
jmivision: 

And  the  high  contracting  parties  agree  to  observe  these 
rules  as  between  themselves  in  future,  and  to  bring  them  to 
th»!  knowledge  of  other  maritime  powers  and  to  invite  Ihem 
to  accede  to  them. 

It  is  apparent  that,  as  to  the  rule  (»f  dania;>es,  the 
arl)ifrators  were  l)ound  by  the  principles  of  inter- 
national law,  and  that  their  decision  u])on  that  (pies- 
tion  must  Ite  held  to  oe  the  international  law  as 
between  these  nations,  accordinj^-  to  the  authorities 
cite<l  in  this  arjiuinent  at  pa<>e  "JO,  supra  cf  set/. 

That  rule  is  l)indin;i'  un<h'r  this  Convention  un- 
less— ((0  the  position  taken  in  the  Hriti>h  ar<iinnent 
(p.  2;"),  fol.  "JO)  be  correct,  tiiat  the  Tribunal  did  not 
really  decide  aji'ainst  tiie  principle  of  prospective 
profits;  or  (h)  there  is  something'  in  the  facts  here 
that  distiniiuishes  tlie  jtrinciple  to  be  applied;  or  (c) 
a  distinction  is  tol)e  made,  as  claimed  in  the  Hritish 
ar;iument,  on  the  jinnind  that  the  torts  in  that  case 
were  not  directly  committed  by  (Jreat  JJritain  with  her 
own  cruisers. 

(«) 

A  s(»mewlirit  remarkable  statement  is  found  in  the 
British  ar»iument  (p.  2;"),  fol.  2(»),  as  follows: 

.V  reference  to  the  inoccedings  before  the  (ieneva  Arbiti'a- 
tion  will  show  that  as  a  matter  of  fact,  although  this  general 


1» 


DAMAGES — PROSPECTIVE   CATCH. 

projtositioii  was  laid  down  in  the  award,  a  sum  in  lien  of 
pronpectire profiU  irim  alloired  to  the  (loiYinmtnt. 

By  reference  to  protocol  No.  2!(  it  will  appear  that  the 
award  was  finally  nuide  upon  the  basis  of  allowing  a  sum 
e(|ual  to  -'5  per  cent  of  the  value  of  the  vessel  and  outfit  iu 
lieu  of  pros])ective  catch,  this  sum  amounting  in  that  case  to 
$988,(HI(>. 

This  is  ii  strikiiifi'  error. 

Alter  !i  very  full  and  most  exhaustive  discussion  of 
the  (juestion  of  prospective  catch,  and  after  hotli  sides 
liad  rested  the  entire  ar<>uinent,  on  Aufyust  1!»,  1S7'2 — 
but  ten  (hivs  l)efore  the  first  formal  ruling  a<>'ain.st 
])rospective  ])roHts — the  arbitrators  recpiested  the 
counsel  for  the  United  States  to  juesent  tables  of  the 
claims  of  the  I'nited  States,  and  then  in  th(»se  tables, 
as  stated,  "In  accordance  with  the  su<>'<>estions  of  some 
of  the  arbitrators  (the  counsel  say),  we  have  elimi- 
nated from  the  tables  the  claims  submitted  in  favor  of 
whalin}>'  vessels  for  the  prospective  catch,  the  annmnt 
of  which  woidd  be  84,()()!»,3(>2.r)0:"  and  it  api>ears 
that  those  claims  were  so  eliminated  for  the  purposes 
of  the  tables  for  the  use  of  the  arbitrators,  althou<;'h 
not  wholly  withdrawn. 

(See  Papers,  Treaty  of  Wasliin<>ton,  Vol.  Ill,  p}). 
579-580,  and  attached  tables  under  head  Shenandoah, 
l)p.  (i()2-(;01).) 

In  Protocol  XXVII  (Id., Vol.  IV,  p.  43)  the  arbitra- 
t(U's  made  their  first  rulinji'  again.st  pro.spective  profits 
Auj-ust  2!»,  1H72. 

Now,  in  Protocol  XXIX,  by  which  the  Hritish  ar<>u- 
ment,  here,  states,  as  above  (pioted,  "it  will  appear  that 
the  award  was  finally  made  upon  the  basis  of  allowing' 
ii  sum  equal  to  2")  per  cent,  etc.,  in  lieu  of  prospective 
catch,"  it  appears  as  a  matter  of  fact,  and  as  stated  in 
the  protocol  itself,  that  the  only  fi<>ures  pre.sented  was 
n(tt  an  award  or  a  findin<iat  all,  "but  that  M.  Staempfli, 
as  oi\e  of  the  arbitrators,  presented  to  the  Tril»unal 
copies  of  the  synoptical  table  which  he  had  prepared  as 
a  proposition  for  the  determination  of  a  sum  in  yross." 


95 


\^y 


96  IMMAGEH — I'KOSI'ECTIVK   CATCH. 

\Vv  will  s('(^  (lirc'ctly  liow  that  iirl)itn»tor  cuiiu*  to 
put  in  tlio  item  "pn>s|K'«'tivt'  profits  and  interruption 
of  voya;io"  in  this  his  own  niiMV  personal  su<fj>esti(»u 
to  the  'rriluuial. 

Hut  as  appears  l»y  tlie  same  j)rotocol  (XXIX)  the 
arbitrator  for  (Jreat  Mritain,  Sir  Alexander  ('ockl)urn, 
promptly  attacked  the  item  in  (|uestion,  sayinj;: 

M.  Staeiiiptli  has  al8o  adiletl.  tor  some  aiiknowii  reason, 
25  |)t>r  ci'iit  oa  the  vahies  of  the  whalers,  an  addition  wliich 
can  be  easily  shown  to  be  equivalent  to  altogether  allowing;, 
over  and  above  the  ori^iaal  value  of  the  whalers  and  their 
outlits.  a  i)ereentajje  exeeedintj  (Ml  per  eent,  and  this  although 
the  <|uestion  of  interest  is  left  open  to  the  decision  of  the 
Tribunal. 

'I'his  all  ocenrred  on  Sififrnihrr  :J,  IS};* — seven  days 
Ix'fore  the  award  of  the  arltitrators.  (Vol.  IV,  id., 
p|t.  44  t<)  47.) 

Tile  award  was  (inally  agreed  to  and  adopted,  as 
appears  hy  I'rotoeol  XXXI,  on  Sr/itniihtr  !>,  1^7. 'J,  and 
in  it  is  the  ///^f^/ (h'cision  on  tluMpiestion  of  pri>spertiv(! 
]>rolits  in  these  words  (see  id.,  ]».  o.'J): 

AikI  wiiereas  i)ro8pective  earnings  can  not  i)roperly  be 
made  the  sabjeet  of  compensation,  niasnnu'h  as  they  depend 
in  their  nature  upon  future  and  uncertain  <ontingenci»'s,  the 
tribunal  is  unanimously  of  opinion  that  there  is  no  fp-oiinil 
for  awarding  to  the  Inited  States  mii/  siiin  by  way  of  iiulem- 
nity  under  this  head. 

That  is  the  final  judfi^ment,  adojttiMl  .srrcit  (f(ii/s  tiftcr 
jtrotoeol  'ill  (referred  t(»  in  the  opposin<>  ar<;innent  as 
al)ove  (pioted)  was  made  and  si^iiied  l»y  the  arhitra- 
tors  on  September  •_',  1S72,  and  after  .M.  StaempHi  had 
then  made  the  snj;';i-estion  (called  the  award  i»y  the 
opposiiiL;'  arjiumeiit)  so  vij^orously  and  successfully 
contested  l)v  the  arltitrator  for  (Jreat  Hritain. 

The  error  of  M.  Staempfli  in  protocol  29,  is  thus 
.shown  to  have  heen  fully  discussed  and  ruled  to  bo 
an  error,  and  expressly  ruleil  as  not  haviufjc  the  ap- 
proval of  the  Tril»unal. 


'! 


^ 


DAMAUKS — I'WOSl'KCTIVK   CATCH. 

.  It  is  ii  Miiittcr  of  no  iiii|iortiiiic('  licrc,  hut  it  is  np- 
piirciit  tliiit  in  iiiiikiiiy'  his  siii^'^icstioii  M.  Stii('m|i}ii 
Wiis  misled  in  iissuiiiiiij>-  tliiit  (irciit  liritiiiii  liinl  iiumIc 
an  fMliiiissioii  in  tlicir  ciisc  to  tlic  ctVct't  set  out  in  his 
nu'inoriimhiMi  sno'^^cstioii.     'rinis: 

At  i>ii;i('  1(M)1»  ot'  the  IJritish  counter  casi^  iuid  cvi- 
ilciicc,  iit'tli  )»in'ii;irii|»ii,  it  Wiis  siiyiicstcd  ns  to  the 
irliiiHiii/  n-sscls  (in  re^iU'd  to  wliicii  mil//  juiv  cliiini  lor 
prospective  ciiteh  Wiis  luiide  hy  the  I'nited  States) 
(hat  interest  at  the  rate  ot'  "  lA)  /iir  mif  jn  r  kiiihihi  on 
the  \ahie  of  eaeh  shij*  and  outfit,  and  in  aihlition  o 
cents  pel' ton  ]ier  (hiy  to  meet  expenses  on  account  of 
expemlitures  and  other  (nshursements,  l)oth  amounts 
hein^i'  inchuh-d  lirtirccii  flir  da//  of  Irariiiff  pint  ni/il  llic 
iliifr  iif  iii/iliirr,  wouM  provi(h'  for  the  h»ss  actuallv 
sustained  in  respect  of  the  forty-one  wliah-rs." 

M.  Staempth  evidently  understood  from  tliisa(hnis- 
sion  that  2")  per  cent  aj'  niliir  was  admitted  l»v  (Jreat 
IJritaiu  as  a  proper  measure  of  damay'es  in  tlu'  case 
of  the  whalers,  when  the  fact  was,  as  aixive  (pioted,  it 
was  :J.'t  jtir  mit  jirr  nininiii  iiitnrsf  tor  the  limited  time, 
which  had  l)een  su<i<>i'sted  in  hehalf  of  (Jreat  Hritain. 

It  is  apparent  that  the  arbitrators  allowed  no  interest 
in  their  award  except  on  account  of  tlie  whalers,  and 
for  the  limited  period  suiijiVstiMl  in  the  Uritish  ar;^u- 
ment  as  above. 

It  is  submitted  that  it  has  been  demonstrated  that 
the  (leneva  Arbitration  did  decide  that  prospective 
profits  should  not  be  allowe<l.  Imleed,  it  is  a]tparent 
rliat,  after  a  very  exhaustive  «'xamiuation  of  the 
decisions,  made  by  both  sides  in  the  ar<>iiment,  the 
Tniteil  States  substantially  al»andoned  the  claim. 

Claim  for  prospective  catch  or  jn'osjjective  profits 
was  made  only  for  tlie  forty-one  whah-rs  destn»yed 
or  captured,  for  tlie  most  part,  bv  the  SlirHiinilixili. 
B  s 1;{ 


97 


?f     !i! 


^wm 


98  DAMAGES — I'ROSFECTIVE   CATCH. 

It  a|i|tt'iuv(l  timt  thi'sc  vi'sscls  wore  tnkcn  on  tlic 
wliiiliii^i'  «:r(»iiiiils,  iiiany  of  tlu-iii  with  cimturiMl  wliiilc-; 
iictually  iiloii;;si(l«':  all  ot'  tli«'iu  succcs.stully  t'lif^a^td. 
and  all  witli  nioit-  or  li>ss  Ixmi*  an*l  oil  on  Ixianl,  witli 
evi'iv  hope  of  a  larj>n  catcli. 

It  a|i|K'an'(l,  too,  tliat  suiistantially  tlio  same  ovi- 
di-nci'  as  to  tlii'  iisliinji'  «iroun(ls  was  ]»n'sc'ntc'(l  under 
till'  claim  for  id'ospcctivu  catcli  as  |tivsi'ntcd  here, 
includin};'  the  evidence  that  nia.sters  and  crews  had 
their  "lavs'"  or  shares  in  the  voya<;«'s. 

\'ol.  ill,  I'ajier.s,  Treaty  of  Washin;;ton,  pp.  253- 
2."»4;  "J  Id.,  .'JS4,  and  specific  evidence  of  prohaltle 
catch  and  estimates.     "Am.  Claims." 

Paraphrasing;'  the  hritish  arjiuinent  at  pajiV  2"»,  fol. 
10,  as  to  seals:  I'lir  rrssri.s  ini'i'  Joiiiid  ait  the  li'liiilii/ii 
t)i<>iin(l-<,  irifli  irrri)  (iji/iHni/ct'  for  r(tl(liiiiif  irlialrs ;  tin 
irhuli s  inrf  flicrc  to  he  oim/lit. 

It  is  not  apparent  from  the  learnin;;-  on  the  snliject,  ■ 
heretofore  I'ecorded,  that  there  is  any  difference  in  the 
rule  of  damai^es  for  marine  tort,  whether  that  tort  lie 
the  result  of  iic;:li;;ence  or  <if  direct  action.  For  the 
most  part,  such  torts  are  those  of  nei^lijii-iice;  and 
if  (ii'eat  IJritain  was  lialile  at  all  for  the  flepredatioiis 
of  the  Alaliama  cruiser.s,  she  was  lialile  for  a  wron«i, 
and  lialile  for  the  usual  measure  of  damaj^es  as  for  a 
wronji'. 

The  ca.se  of  Tlir  AdiuiIiIi'  Xdiici/  (^  Wlieaton,  p.  ri4(I) 
was  a  case  of  capturi',  of  which  .Mr.  .Iiistice  Story, 
ill  deliveriuj:"  the  opinion  of  the  court,  said: 

"Ljion  these  facts  disclosed,  this  must  lie  pro- 
ni!unced  a  ca.se  of  '^ntss  and  wanton  outrajic  without 
uny  just  provocation  or  (excuse."  But  the  court  held 
that  "the  prolialile  or  possible  benefits  of  a  voya;;c 
can  never  offer  a  safe  rule  liv  which  to  estimate  dam- 
ages in  ca.ses  of  a  marine  trespass." 


DAMAOKS — I'KOSF'KrnVK   CATCH. 


99 


hut  it  is  stnti'tl  in  \\\v  opposiii;^-  ai'iriiiiK'Ut  (p.  *J'>, 
tol.  30): 

A  nuliciil  distinction  oxists  lii-twiMMi  tlic  Ai-'IniiiKi  ciisc 
and  the  ])i'i>siMit.  In  thu  ciisu  of  tlie  Alulmmu  \t  was  mtt 
roiitviKliil  that  it  was  tiio  dcsijrn  of  tlit'  IJritisli  (iov'tn'nincut 
to  ranse  tiie  loss  whii'li  ensiu'd,  uw  was  hucIi  loss  tlu!  diruct 
it'snlt  of  tlic  nejfliyfi'nco  with  whicii  they  w«re  charjjred. 

Tliis  is  iinswcn'fl  tVuiii  tlic  IJritisli  nr^iiiin-iit  licrc, 
itself  ipiiitiii;;'  tlu'  positions  ut'  tlic  I'liitcil  Stiitcs 
a^iiinst  (Jnsit  Uritaiii  (p.  21,  tol.  10  <■/  mv/.). 

Tilt' cliar^',' ot' tlic  liiiitcd  States  liefore  tlie  (Sciievn 
'rril)iiiial  was  coiisidcrcil  l»\  licr  .Majesty's  (Joveni- 
iiieiit  as  "a  cliarye  of  iiijiirioiis  iic^iliii'eiice."  (Mrit. 
Ca.se,  \'o|.  1,  Papers,  Treatv  of  Wasliiiintoii,  p.  4rj.) 

it  was  eoiitendeil  on  tlie  part  of  the  I'liittMl  States 
tliat  the  acts  of  (Jrcat  iJritaiii  were  of  a  eliarartcr  l>v 
•'actual  or  constructive  complicity  with  the  Confed- 
erates which  ;;'ave  the  same  riii'hts  a^^ainst  her  as 
(ireat  Britain  asserted  hv  war  against  the  Nether- 
lands." (Id.,  V(d.  Ill,  p.*21S,  and  .see  id.,  pp.  -JlK- 
•J20--J22-22:5.) 

I'he  whole  aroument  of  the  I'liited  States,  from 
iu'ninniu;,;'  to  the  end  of  the  (leiu'va  'i'riliunal,  was  to 
estal)lisli  these  |)ropositions,  as  a^ain>i  (ireat  Mritain, 
l)y  the  acts  of  cruisers  for  which  damaoes  were 
awardeil: 

Thed»'t'aiiltscharKvd,an(l  as  wo  tliiiiii,  the  defaults  proved, 
are  jjrave,  serious,  capital.    *     •     • 

If  yon  destroy  my  ship,  my  house,  or  my  horse,  by  culpa- 
l)le  carelessness,  it  is  no  answer  to  say  that  you  mi}iht  have 
been  more  careless,  nay,  that  you  ini;iht  have  acted  with 
deliberate  malice.  If  there  be  responsible  wrong,  whether 
it  be  the  greatest  possible  wrong  or  a  ilcgree  less  than  the 
greatest  possible,  still  the  indemnity  follows  as  a  legitimate 
and  .just  conseqiientie. 

Snob,  indeed,  is  the  tenor  of  the  creaty,  which  attaches 
resiKmsibility  to  mere  wiint  of  "due  diligence,''  and  does  not 
rei|uire  that  (treat  IJritain  should  have  been  guilty  of  the 
utmost  conceivable  degree  of  willful  negligence  which  could 
by  possibility  be  conunitted  by  any  Government. 


Id.,  p. 


!20. 


flr'?!'W1f' 


xoo 


DAMAGES — I'KOSPECTIVE   CATCH. 


I.I.,  i>.  'J'l.i.  8ncli  is  the  lolative  predic'ameiit  of  Great  lUitaiu  and  tlie 
United  States.  We  liave  been  injured  as  a  nation  by  aets 
of  a  niaiitinio  wai'  liapiK-niiifj;,  as  the  counsel  tbiidc  tbeyliaxe 
])roved,  by  the  culpable  and  responsible  neglifjencc  of  the 
IJritish  Government.  The  wronj;;  is  direct  as  between  the 
two  nations. 


'rrilmnal    t'ountl    Orcat 
the  tullowiii" 


liiiiyuaye 


liritaiii 
«»f  tlie 


And  tlu'  (icncvn 
oiiilty  of  ii  t(irt  hy 
awiird; 

And  whereas  the  circumstance  s  out  of  which  the  facts  con- 
stitiitinji  the  subject-matter  of  the  present  controversy  arose 
wev»i  <>f  a  nature  to  call  for  tlu^  exercise  on  the  part  of  Her 
Br  nic  ]Majesty's  Government  of  all  jmssible  .solicitude  for 
the  servance  of  tlie  rights  and  duties  involved  in  the  jjroc- 
lama  ion  of  ueutrality  issued  by  Her  Majesty  on  the  l.'itii 
day  of  May,  18<)1. 

•  •  •  *  * 

Aiul  whereas  the  (iovernnu'iit  of  Her  Britannic  Majesty 
can  not  Justify  itself  for  a  failure  in  due  diligence  on  the 
plea  of  tiie  inellicieiu'y  of  the  le}>al  means  of  action  which  it 
J  K)SS(>sse(l ; 

Four  of  the  arbitrators,  for  the  reasons  above  assiffued. 
and  the  tifth,  for  reasons  separately  assijjned  by  him,  are  of 
opinion — 

Tliat  Great  Britain  has  in  this  case  failed,  by  omission,  to 
fultiil  the  duties  prescribed  in  the  first  aiul  the  third  of  tlie 
rules  established  by  the  \'l  Article  of  the  Treaty  of  Wash 
ingtou. 

Ami  see  tlie  viji'onms  terms  "oU'eiider"  ami  "iieiili- 
oeiiee"  ill  the  Award.  (Award,  \'(»1.  4,  i'apers  K'elat- 
iii;.;'  t(»  TreatN'  of  Wasliiiiiitoii.  ]»|).   i'.t,  50,  .")!.) 

vl  Jitiliiri'  aj'ihir  ililii/nicr  is  one  of  tl:e  standard  deti- 
nitioiis  of  iieo'li^i'eiice  and  of  "eiilpalde  ne^li^ieiiee." 

('iilpahle  neiiliucnce  is  not  actionalde  uidess  it 
results  in  injiirv,  and  recoverv  can  not  lie  liad  for 
it,  then,  unless  the  neiiliucnce  is  the  direct  or  proxi- 
mate cause  of  the  injin'v. 

So  that  the  (ieiiexa  Trilmnal  haviiio-  found  eiilpa- 
l)le  nei:li^-enee  on  thi'  part  of  (ireat   Mritain  and  an 


DAMAGKS — PHOSPECTIVE   CATCH. 

injiirv,  tlie  luoasiirt  of  ri'CdvtTV  iippliod  l»v  i1  is  tlic 
im'jisurc  to  Jh'  iip})]ii'(l  in  all  casi's  ot' iiiariiu'  tort,  and 
ill  this  case. 

It  is  suhiiiittcd  tliat  tlio  niliiiji'  of  the  Cu'iu'va  Tri- 
bunal  on  ])ros|)C'ctiv('  catch  is  the  law — the  law  of 
this  case. 

(TWO.) 

There  is  no  authority  tor  the  allowance  of  ])ro- 
s])ective  catch  or  jirositective  profits  in  international 
law,  or  in  the  judjiiuents  of  the  courts  of  either 
nation. 

Then'  is  no  conflict  whatever  on  the  subject,  and 
after  considering  the  Knji'lish  and  American  jnd<i'- 
nients  aji'ainst  the  allowance  of  such  daiuaj:es  it  is 
proposed  to  analyze  the  citations  to  the  contrary  in 
the  opposiuii'  arjiunient. 

It  shoulil  lu'  borne  in  mind  that  the  claims  oi 
owners  which  are  now  beinj^-  <liscussed  are  claims  for 
total  loss  to  them,  and  not  cases  of  warninji'  or  deten- 
tion.    Cases  of  warnin<^' will  be  treated  separateh'. 

"^riie  leadinji'  cases  are  cited  as  follows:  The  kn<i- 
lish  case  of  the  (.'oJntuhiis  (2  W.  Ivobinson,  p.  15S, 
'nifr(i);  the  American  case  oi'  the  Linlji  ((Jallisou, 
]).  315,  infra).  In  the  case  of  The  Jiitiohlc  AVn^//, 
3  Wheatou,  p.  liHl: 

The  probable  or  possible  benelits  of  a  voyage  as  yet  in 
furi  can  never  atl'ori!  -a  sale  rule  by  wliicli  to  estimate  dam- 
ages in  cases  of  a  marinv  trcujxi.'-s.  There  is  so  iniieh  luicer- 
taint,  iii  the  n>le  itself,  so  many  contiupencies  which  may 
vary  or  extinguish  its  application,  and  so  many  didiculties 
in  su  i\.]iiiif^  itfi  legal  correctness,  that  the  court  can  not 
b'^^lieve  it  propev  to  entertain  it. 

The  Amis'.ad  de  Hues  (.')  WheiJton,  p.  3X5): 

In  <  li.ics  of  iiKtiiiiv  torts  this  court  has  deliberately  settled 
♦hat  the  probable  profits  of  a  voyage  are  not  a  lit  mode  for 
the  ascertainment  of  damages.  It  is  considered  that  tlie 
nde  is  ton  uncertain  in  its  own  nature  and  too  limited  in  its 
aitplieabiJity  to  entitle  it  to  judicial  sanction. 


101 


"«»lf " 


102 


DAMAGES — PROSPECTIVE   CATCH. 


In  tlic  Hritisli  Coimtur  ('iisc,  (Jciievii  Arliitnition 
(pp.  !)1I0,  !iyi),  wi>  iiii<l  this  stiiUMiU'iit  of  the  liiw: 

When  once  the  liiibility  to  compensation  for  a  given  los.s 
is  established,  such  coinpeiisation  is  to  be  estimated  iu 
accordance  witii  the  well-recognized  i)rinciple  oi' rrsfitiitio  in 
inteijnim,  subject,  however,  to  those  considerations  as  to  the 
damages  not  being  of  too  remote,  eontingei'f.  or  speculative 
a  character,  which,  being  common  to  tliejurispriidonceotall 
civilized  nations,  are  adopted  by  international  law,  and  seem 
to  us  theret'ore  properly  api>Iicable  to  the  i>re.sent  (piestion. 

It  is  on  this  principle,  limited  by  these  considerations,  that 
the  courts  ol'  common  law  and  ot'  adndraity,  as  well  as  the 
l)rize  eoxirts,  Ixith  in  lOngland  and  Americ  j,  ):ve  awarded 
damages  ///  vusvs  n)'  collisiiin,  cnplnrc.  tmi  '>'/,■  >•-  of  a  like 
111(1  lire. 

Thus,  in  the  case  of  the  Amnlin  (5  >"(  ,.  Ko;.' '  i  ,  ll>4),  Dr. 
Lnshington,  the  late  very  eminent  Judge  (/!'  tli<'  high  court  ot 
admiralty  of  j^nglaiul,  said: 

"  VVluM-e  a  collision  inis  taken  jtlace  and  one  of  the  parties 
to  the  collision  has  been  placed  in  the  situation  of  the  wrong- 
doer, according  to  all  ordinary  principles  of  Justice  the  party 
injured  ought  to  receiver  full  ami  entire  indemnity  for  his  loss. 
Tliis  is  a  |)rineiple  of  common  Justice.  It  is  undoubtedly  the 
rule  originally  pi'evailiiig  in  all  these  cases,  and  is  technically 
styled  n:stititlii>  In  int<(jrnni.  It  is  not  only  the  doctrine 
of  the  court  of  admiralty,  but  the  doctrine  of  the  courts  of 
common  law." 

.Again,  in  the  <!ase  of  Clii<lf  (Swabey  II.,  l.'3),  the  same 
learned  Judge  saiil : 

"As  to  the  princiitle  upon  which  the  court  iiroceeds  in  these 
cases  there  is.  I  aiijirehend,  no  doubt  whatever.  That  has 
been  laid  down  in  the  (liurllc,  miniely.  that  ..'heneverdainage 
is  (lone  by  one  vessel  to  another  the  parties  are  to  be  restored 
to  the  same  state  as  they  W'-re  in  before  the  accident — liiat 
is  to  say,  they  are  to  have  the  full  value  of  the  property  lost; 
trstitntio  in  inliiirnm  is  the  lea<ling  maxim." 

!So.  in  the  American  case  of  Williamson  ;•.  Har  e!  fi'* 
Howard,  101 1,  it  is  said:  "The  general  rule  '.^  reg.dai  lu 
danuiges  in  eases  of  collision  is  to  allow  the  injur,><l  party  ai' 
indenuiity  to  the  extent  of  the  loss  sustained."* 


riiis  was  a  ciiHc  ol'  ilott'iitioii,  not  total  loss;  sei'  opinions  of  tlnvo 
.jiintii<>s.  iiit'liiiliiij;  Tiiiicy.  ('.  .1.,  Iii.vinij  ilowii  tin'  rule  of  tlio  tuxt  iiinl 
(lissiiitiiiK  liiMaiisenot  aiiplii'il  to  a  casr  of  doti'iitioii  pii  riscly  as  to  a 
total  loss. 


t 


DAMAGES — I'KOSI'ECTIVE   CATCH. 

Ou  the  other  liaml  tliat  yi'iieral  iiili'  is  limited  by  tbe  con- 
siderations above  referred  to.  Thus,  in  tbe  Cohimlnis  (2  \V. 
Itobinsou,  l.'tS),  Or,  Lushington  said: 

"It  lias  been  argned  tliat  the  i»rineiiile  uiion  which  this 
court  proeeetls  in  all  matters  ol  this  kind  is  rcxtUutio  in  inie- 
(jfxim ;  in  other  wcn-ds,  the  principle  of  replacing  the  i)arty 
who  has  received  the  (lamage  in  the  same  position  in  which 
he  would  have  been  i)rovided  the  collision  had  not  occurred. 
As  a  general  jnoposition,  undoubtedly  the  priu(rii)le  in  (jues- 
tion  is  correctly  stated,  and  not  only  in  this  court  but  in  all 
other  courts  1  ai>i)rehend  the  general  rule  of  law  is  that 
where  an  injury  is  committed  by  one  individual  to  another, 
either  by  himself  or  his  servant,  for  who.se  acts  the  law 
makes  him  lesponsible,  the  party  receiving  the  injury  is 
entitled  to  an  indemnity  for  the  same,  iiut  although  this  is 
the  general  iirincii)le  of  law  all  courts  have  found  it  neces- 
sary to  adopt  (iertain  rules  for  the  application  of  it,  and  it 
is  utterly  impossible  in  all  the  various  viises  that  may  arise 
that  the  remedy  which  the  law  may  '^ive  should  always  be 
to  the  precise  amount  of  the  loss  or  injury  sustained. 


103 


111 


*  *  *  "Let  us  for  a  moment  consider  what  would  be  the 
effect  in  all  cases  of  this  kind  of  giving  anything  beyond 
the  full  value  of  the  vessel  destroyed.  Supposing,  lor  in- 
stance, that  this  vessel  had  been  an  I'-ast  Indiaman  bound 
ou  her  outward  voyage  to  the  Ivist  Indies  with  a  valuable 
cargo  on  board,  lor  the  transportation  of  which  not  only  would 
the  owners  be  entitled  to  a  large  aimuint  of  freight,  but  the 
master  must  be  entitled  to  consideral)le  contingent  juofits 
from  allowan<"es  nnule  to  him  upon  such  a  voyage.  Oould 
this  court  take  upon  itself  to  decide  ujion  the  amount  of 
these  c<mtingen(ies,  and  to  <lecree  the  payment  of  the  same 
in  addition  to  the  payment  of  the  full  value  of  the  ship?  1 
aiu  clearly  of  the  ophiiou  that  it  could  iu>t. 

"The  true  rule  of  law  in  such  a  case  would,  1  conceive,  be 
this,  viz.  to  calculate  the  value  of  the  projterty  destroyed  at 
the  time  of  the  loss,  and  to  pay  it  to  the  owners  as  a  full 
imlemnity  to  them  for  all  that  may  have  happened,  without 
entering  foi'  a  moment  into  any  otlier  consideration.  If  the 
principle  to  the  eontiary  contended  for  by  the  owners  of  the 
smack  in  this  case  were  once  admittetl,  I  see  no  limit  in  this 
application  to  the  (lilllculties  which  would  be  imposed  upon 
the  c(uu  t.  It  would  extend  to  almost  endless  ramilications, 
and  in  every  case  1  might  be  called  upon  to  determine  not 
oidy  the  value  of  the  ship  but  the  prolits  to  be  derived  on 


104 


DAMAGES — PROSPECTIVE   CATCH. 


the  voyage  in  wliicli  she  might  be  eiisiiffed ;  iuiil,  indeed,  even 
to  those  of  the  letuiii  voyage,  wliidi  might  be  said  to  have 
been  defeated  by  tlie  collision.  Upon  this  consideration 
alone  I  shonld  not,  I  conceive,  be  Justitied  in  admitting  this 
claim." 

The  same  qualitication  of  the  broiid  pvinciple  of  rcstHiitio 
in  hitifiriim  is  laid  di)\vn  by  Mr.  .lustiee  Story  in  several 
reiM)rted  cases,  as,  for  instance,  in  the  case  of  the  Linli/  (1 
Gallison,;Jl 5),  where  that  most  eminent  American  jndge  said, 
in  reference  to  damages  for  loss  of  cargo: 

'■  rp(»n  the  whole  I  am  satislied  that  the  profits,  U])on  the 
sui)position  of  a  prosperous  termination  of  the  voyage,  ought 
jiot  in  any  case  to  constitute  an  item  of  damage.  ♦  •  *  ^ 
am  satisfied  upon  print-iple  that  an  allowance  of  damages 
upon  the  basisof  a  calculation  of  profits  is  inadmissible.  The 
rule  would  be  in  the  higlu'st  degree  unfavorable  to  the  interests 
of  the  community;  the  subject  would  be  involved  iu  utter 
uncertainty. 

"The  calculation  would  i>roceed  ujton  contingencies,  and 
would  require  a  knowledge  of  foreign  markets  to  an  exact- 
ness in  i)oint  of  time  and  value  which  would  sometinu^s  pre- 
sent embarrassing  obstacles.  ]\Iuch  would  de[iend  upon  the 
length  of  tilt'  voyage  and  the  season  of  arrival,  much  upon 
the  vigilance  and  activity  of  tlie  master,  and  much  upon  the 
momentary  demand.  After  all,  it  would  be  a  calculation 
upon  conjecture  and  not  upon  facts.  Such  a  rule,  therefore, 
lias  been  rejected  by  courts  of  law  in  ordinary  cases,  aiul 
instead  of  deciding  upon  the  gains  or  losses  of  parties  in 
particular  instances,  a  uniform  interest  has  been  applied  as 
the  measure  of  damages  for  the  detention  of  property.'' 

Si'c  also  1 'arsons  oil  Sliippino',  Vol.  I,  p.  538,  and 
Sedywick  on  DaniajiX's,  p.  70. 

Tlio  ivason  of  tlie  rule  a^i'aiiist  allowin<i'  ])rospec- 
tivo  oatcli  or  probable  profits  is  well  stated  in  the 
Kiifili.sli  case  ot'  the  ('(iliiiiihits  (2  W.  Robinson,  p.  l.")8), 
a  iishiny  vessel: 

In  tliem  (the  claims)  exist  all  tiiose  elements  of  uncertainty, 
remoteness,  and  difliculty  wliicli  would  undoubtedly  lead  the 
courts,  both  in  America  an.:  in  Kngland,  to  reject  the  claims 
altogether.* 


"See8iilisei|HoiitIien<loiiCoiitiiiRencie8ofNeaIin)t,  ji.  177,  tliiHnrKunient. 


DAMAGKS — PROSPECTIVE   CATCH. 


105 


Decisions  of  other  iiitcniution<d  tribmiols. 

In  the  year  1SG7  iiii  I'sjU'cijilly  liiird  case  occiuTtHl. 
It  was  called  in  tlie  (liploniatic  coiTespondeiu'e  "an 
outrajie  coinniitted  on  the  hi<>h  seas  near  the  Hrazlliau 
coast  uj)on  a  whaleshij)  called  the  CaiKidd,  sailing* 
under  the  Hag  and  belonging'  to  citizens  of  the  I'nited 
States."* 

'["he  act  was  conniiitted  by  the  military  authorities 
of  Brazil,  for  which,  of  course,  the  Brazilian  (Jovern- 
iiient  was  responsible.  It  consisted  of  the  capture  of 
the  vessel,  resulting  in  her  loss  to  the  owners. 

Not  only  was  the  act  an  atl'ront  to  the  flag  and  the 
dignity  of  the  [-nited  States  and  a  disastnms  wrong 
to  citizens  of  the  Tnited  States,  but  the  circum- 
stances were  particularly  atroci(ms,  in  that  the  whaler 
at  the  time  was  in  distress,  having  run  on  the  rocks, 
and  was  in  iimninent  danger  of  shipwreck. 

The  un(piestioned  principle  of  international  law 
need  not  l)e  here  referred  to,  that  in  such  circum- 
stances a  vessel  is  held  to  l)e  under  the  jn'otection  of 
all  nations,  and  free  from  the  ordinary  rules  as  to 
lial>ility  t(»  the  laws  of  port  of  any  nation  except  its 
own. 

On  March  14,  1870,  a  convention  was  concluded 
between  Jirazil  and  t\\o.  I'nited  States  by  which  the 
(piestion  of  lial)ility  and  compensation  was  referred 
to  the  arbitration  of  Sir  Edward  Thornton,  then,  and 
for  ti  long  time  thereafter,  Her  Britannic  Majesty's 
minister  at  Washington. 

Sir  Kdward  made  his  award  on  July  11,  lS7t>,  by 
which  he  found  the  following  facts: 

The  Caiuuhi  gntunded  on  ii  reef  of  rocks  within 
Brazilian  jurisdiction.  'I'he  proper  means  were  used 
by  her  captain  and  crew  with  every  prosi)ect  of  suc- 

nispatcli  of  Secretary  Kisli  to  Mr.  Blow  communicated  to  tbe  mia- 
"     "      ■  ■  8,  l>ecember  28,  l«i». 


p: 


ister  for  foreign  i 
B8 


-U 


TTWHW^ 


106  UAMAGK8 — PROSPKCTIVK   CATCH. 

»'oss  to  <xvt  luT  oli',  iiiid  on  lU'ct'iiiluT  1  ii  IJniziliaii 
otHccr  with  14  iiniu'd  iiicu  Ixiiinlcd  her,  superseded 
the  iiutliority  <»t'  the  ciiptaiii,  and  t'oreihly  jtrevented 
the  further  |irose('iition  of  tlieir  efforts  to  save  the 
sliip. 

Tliat  slie  wotdd  in  fact  Iiave  been  save<l  hut  for 
this  iniproper  interference,  and  that  slie  was  hist 
tln't>ui;li  the  interference. 

Il\i(h'nce  was  introduced  as  to  the  ])ossil»lc  iiid 
])ros|tective  catch  if  she  had  been  permitted  to  pro<  eed 
on  lier  voyaji'e. 

The  amount  of  the  pros]»ective  catch  was  (h'luon- 
strated  liy  her  own  previous  catches  and  1)\'  the 
catches  of  other  wlialei's  tor  the  same  season. 

The  distiujiuislied  arbitrator  f  course  hehl  Hi-a/.il 
lial)h'  for  the  full  value  of  the  loss  so  iuHicted  on  the 
citizens  of  the  I'liited  States,  and  tliat  a  full  coni- 
]»ensation  and  indenmity  became  actnalK'  due  from 
the  moment  of  the  loss;  but  on  the  (piestioii  of  pros- 
pective catch,  the  arlntrator,  in  rulini;'  against  it,  uses 
this  laiiiiuauc: 

I  can  not  admit  in  any  case  tlio  right  to  i>iobal)le  profits, 
because  tlie  sliijt  nii<>lit  have  been  lost  at  tbc  bejiiiniing  of 
bcr  voyajje,  or  tlie  exjictlition  niijilit  liave  been  altojietiu'r  a 
faihu'c  and  in-otitles.s.  (Vol.  (i(>,  lUit.  and  For.  State  I'apers, 
1874-.'5,  pp.  l.M»t-JO!».) 

(ireat  Britain  made  a  claim  ajiainst  («ermanv  tor 
the  destruction  of  certain  British  vessels  in  the  Seine 
by  the  forces  of  (n-rmany  in  ISTl,  in  l)e]ialf  of  her 
subjects,  the  owners.  The  daims  were  fir.st  audited 
and  examined  (as  the.s<'  shoidd  have  Ix-en)  authori- 
tatively by  the  Mritish  (n»vernment,  and  for  this  jtur- 
pose  were  referred  to  the  lords  of  the  privy  council 
tor  trade.  There  was  alsct  a  reference  to  and  a  report 
from  the  learned  registrar  of  the  court  <»f  .\dmiraltv, 
Mr.  IJotherv. 


1^  ■  i 


DAMAGES — PKOSl'ECTIVK    CATCH. 


107 


"I'lic  result  was  rcportcil  1)V  Sir  Louis  Mallet  to 
Lord  Kiilicld  on  April  L"),  ISTl. 

Tlic  followiiij;-  is  an  extract  tVoni  that  report  (lirit. 
and  For.  State  I'apers,  1S7(I-1,  Vol.  61,  pp.  T)".!  1-607): 

As  regards  the  claiiiis  of  tlie  owners  for  loss  of  enii)lo.vinent 
of  slii|i8  over  and  above  the  claims  for  value  of  the  ships, 
and  of  the  nnistera  and  crews  for  loss  of  employment,  the 
board  are  advised  that  they  must  be  rejected  as  untenable. 

The  claims  preferred  nniy  be  said  generally  to  iindude  the 
values  of  tlu^  vessels,  and  of  the  cargoes  which  were  on 
board,  or  were  about  to  be  i)ut  on  board,  compensation  to 
the  owners  lor  having  been  forcibly  deprivetl  of  their  nrop- 
crty,  and  comi)enHation  to  tlie  master  and  seamen  for  the 
loss  of  their  employments  (p,  (i(K(). 

A  further  ([uestion  seems  to  have  b(?en  raised  whether  the 
owners  are  entitled  to  anything  beyorid  the  full  value  of  the 
vessel  and  cargo,  the  rvsliiiitio  hi  iiitcunim,  on  the  ground 
that  if  they  had  not  been  dei)rive»l  of  their  vessels  they 
might  have  continued  ior  some  nionvhs  or  years  to  carry  on 
II  prosperous  trade  and  have  realized  large  protits  therefrom. 
One  gentleman  claims  specilicaily  ou  this  ground  tlie  antici- 
pated |)rolit8  of  several  snbseiiuent  voyages,  and  all  of  them 
claim  it  iu<lirectly  in  tiie  extravagant  annnints  at  which  they 
liave  estimated  the  values  of  their  vessels:  but  the  claim, 
whether  in  the  one  shape  or  the  other,  seems  to  me  to  be 
quite  imidmissible. 

The  princii)le  which  governs  cases  of  this  description  was 
very  clearly  laid  down  by  Dr.  Lushington  in  the  case  of  the 
VdIiiiiiIhih,  rejiortcd  in  (>  Notes  of  Oases  (p.  071).  It  was  the 
case  of  (t  Jinliiiiii  rcsscl,*  which  had  been  run  down  and 
utterly  lost,  and  the  owner,  who  was  also  the  master,  claimed, 
the  smack  having  been  his  sole  means  of  support,  a  sum  of 
C8!»  for  wages  an<l  victualing,  and  ,C75  for  twelve  months' 
tirvniijv  profif  irliich  icoiild  hare  (icvruvd  to  him  from  tlir  usual 
aiiploi/mi'iit  of  his  smaclc.  Hut  Dr.  Lushington  rejected  the 
claim,  saying,  "I  take  the  rule  to  be  this:  In  the  case  of  a 
total  loss  you  calculate  the  value  of  the  property  destroyed 
at  the  time  of  the  loss  and  pay  it  to  the  individual  as  a  full 
indemnity  to  him  for  all  that  nuiy  have  happened  to  him, 
(Old  you  iierer  vnn,  by  possibility,  enter  into  oh  e.riiniin<ition  of 
irhiit  miyht  have  been  t/aincd,  or,  (tn  the  other  hand,  lost  by  an 
lidrenture  of  this  lind.'^ 


m 


•  Set)  analysis  this  cast)  infni,  showin);  I'vidence  of  averajje  profits  of 
I'litcU  bot'liro  tho  uuiirt  on  this  (|nestiuii. 


|!:t" 


108  UAMAOKS — PROSPECTIVE    CATCH. 

And  the  reason  in  obvious,  for  no  one  can  say  with  eer- 
tainty  wlietlier  in  any  future  adventure,  for  irliirli  tlior  is  im 
r.i7>»v.v.v  contract,  the  sliijiowner  will  make  a  i)rolit,  nor  what 
that  ]>rolit  will  be.  1/ there  is  mi  critrcnx  contract  for  the  hin 
of  the  shiji,  iioii  can  no  tlouht  cstimutc  appro.rimoteUi  the  jtrojitu 
of  the  roj/dfic,  ttnt  if  there  is  no  sitch  contract  yon  can  not  <lo  so, 
anil  the  nilrentnre,  instead  of  {/irinii  a  projit,  man  resnit  in  a 
henrif  loss. 

Ill  till'  case  of  tilt'  Hitiicdditi  lu'torc  tin-  Hritisli  iiiid 
Aiiicriciiii  Mixed  Coiiimissioii  of  May.  1S7I  (|».  !M, 
lirit.  A^iciit's  |{«'|Mirt),  tlic  same  principle  wasaninnecl 
ill  the  case  of  claims  for  losses  of  |»roJits  and  the  fail- 
ure to  realize  commissions  <ni  sales  depending'  n]toii 
the  safe  arrival  of  the  ship. 

The  case  of  the  Was/iiiH/toit  before  the  Mi. \ed  ( "oiii- 
missioii  of  isr)3  was  in  evcrx'  respect  analojioiis  to 
the  present  case. 

(Jreat  Hritain  claimed  jurisdiction  over  the  \h\\  of 
Fundy  as  territorial  waters.  The  Wnsliniiitoii  was 
.seized  10  miles  from  shore.  It  was  held  that  the 
wafers  were  not  territorial,  and  that  the  seizure  of  the 
W'tisliiiK/loii  was  made  on  the  hijili  seas.  The  ship 
was  t>\vned  l»y  American  citizens,  and  was  under  the 
American  Ha<i'. 

It  was  therefon'  a  case  of  seizure  in  jirinciple  pre- 
cisely like  the  case  here.  Sin;  had  heeii  condemned 
hy  a  British  court,  and  with  her  (Mpiipmeiit  and  stores 
sold  under  the  order  of  the  <'ourt  At  the  time  of  the 
seizure  she  was  en;^ii;ied  in  fishinji',  and  she  made 
claim  tor  all  damaji'es,  includinj^",  it  is  a.ssuined,  her 
probable  catch  and  interest  As  finallv  decided  bv 
the  umpire,  the  claim  was  abated  from  i^4,121  as 
excessive,  and  the  sum  of  ^3,()(*0  was  allowed. 

While  the  ruling-  is  not  exjire.ssly  made  a<>aiiist 
prospective  catch,  it  is  clear  that  that  item  was  not 
allowed. 


\\l'l 


DAMAGES PROSPKCnVK    CATCH. 


109 


Ofhrr  (iiitlioriHi's  train  flic  courts. 


Ill  till'  J/i(illiiii  (II  Wlu'jituii,  ;{()•_»),  .Mr.  -lustico 
Storv,  (IcIivcriujLi'  the  opiiiiou   ot   tlic  «'t»iirt,  siiid   (p. 

TIlis  court  on  various  (xu-iisioiis  lias  exprcssi'd  its  drcidod 
opinion  that  the  i)rohal)le  prolits  of  a  v<i.va<ii',  either  upon 
sliip  or  earf;o,  eaii  not  furnish  any  Just  basis  for  the  computa- 
tion of  dainasos  in  cases  ot  niarine  tort.    *     »     • 

VVheii  tilt'  vessel  and  carf^o  are  lost  or  de.stroyed,  the  just 
lueasiire  has  been  deemed  to  be  their  actual  value,  together 
with  interest  upon  the  amount  from  the  time  of  the  tres- 
])ass,     *     •     • 

Ami  it  may  be  truly  said  that  if  these  rules  do  not  furnish 
a  complete  indemnilicatioii  in  all  cases  they  have  so  much 
certainty  in  their  application  •  *  *  that  they  are  entitled 
to  .sonu^  commendation  upon  priiici|iles  of  public  ])olicy. 

Set!  iilso  Siiiitli  r.  ( 'tMidicv,  1  How.,  "JS;  N'niniliiiii 
iiii.l  'l\'l('j.Tiii.li.  14  Willi.,  L>r)S;  Del.  Co.  r.  .Ann.ld, 
;;  l)iill..;{;{;5;  TIicAuuu  .Vmid.  •iWlicnt..  :\-21.  Wood's 
.Miiviu'  on  l);iiii!i"('s,  citi'd  in  the  Hritisli  iiryiinicnt 
(1st  .\iiK'riciiii  Kd.  troll  1  3d  Kni>lisli  edition,  ji.  At!) 
says : 

In  fjeneral,  however,  injuries  to  projuMty.  where  unaccom 
]ia.iied  by  malice,  and  especially  where  they  take  ])lace  under 
a /tincieil  rhjht,  are  only  visited  with  daina^ics  luoportionato 
to  the  actual  iiccuniarv  loss  sustained,     ((irand  Tower  Co.  r. 
Phillips,  I'.t  Wall.,  47 1';  Owen  r.  liouth,  14  O.  15.,  ;{L'7.) 

And  in  I  Sutherland  on  Dannio'es,  173: 

The  value  of  the  luoperty  constitutes  the  measure  or  an 
eleineiit  of  damages  in  a  great  variety  of  cases  both  of  tort 
and  contract;  and  where  there  are  no  such  aggravatioi  «  as 
call  for  <u-  justify  e.xemplary  damages,  in  actions  in  v  aich 
such  damages  are  recoverable,  the  value  is  ascertained  and 
adopted  as  the  measure  of  compensatiin  for  being  deprived 
of  the  property,  the  same  in  actions  of  tort  as  in  actions  upon 
contract,  lu  both  cases  the  value  is  the  leiinl  miil  Jixed  meas- 
ure of  damages,  and  not  discretionary  with  the  Jury. 

See  the  Citii  of  I'ckiii  (lo  App.  ("is.  H.  I..,  43X), 
which  was  ji  ease  of  partial  loss;  I'lic  Falcon  (111 
Wall.,  7.'));    The  Afla.s  (!»3  V  S.,  3(>-2). 


i: 


I<|.V™V-'?'!I 


(.      I' 


110  DAMAGES — PROSPKCTIVK   CATCH. 

It  results  that  the  (l(MMsioiis  of  iiitomiitioiuil  courts, 
ciiid  t)t'  courts  of  Itoth  countries,  arc,  without  excep- 
tion, in  (hrect  conHict  with  tlie  i)ositi(»n  taken  in  tlic 
(tpposin;'-  argument,  in  every  case  when-  the  ship 
of  the  claimant  is  lost  to  him  l)y  tort,  either  l»v 
destruction,  capture,  or  the  ahautloumeut  l»v  the 
owner  to  coinlenmation  proceedings,  or  to  the  captor, 
or  in  any  other  case  of  actual  loss  of  the  property. 
Cases  of  detention,  and  possildy  of  warnin<is,  stand 
upon  a  (liH'erent  footinj;-,  and  in  such  ca.ses,  !»oth  of 
contract  antl  t<»rt,  damayes  in  the  nature  of  denunTaji'e 
are  always  allowed,  and  in  .some  cases  where  a  loss  l)v 
the  detention  can  l)e  shown  quoad  (piantum  n'ltli  <(i- 
tit'nitii,  somethinji'  more  than  the  ordinary  denuuTajic 
may  ite  allowed;  never  even  in  such  case  (»n  specu- 
lative evidence  where  there  are  contin;^'encies  or 
chances.* 

It  is  now  j»roposed  to  anal\/,e  the  rases  litrd  in  the 
Jliitisli  (infitiiiint/roni  ikii/cs  .11  to  .'14 : 


(1) 

[  I'l'ithf  (/I.  :.'!(>):  The  action  was  like  that  of  con- 
spiracy to  injure  trade. 

It  was  a  willfid  and  malicious  tort,  for  which  a 
recovery  could  have  been  had,  as  in  the  case  of  any 
trespass.  As  for  instance,  a  cons|»iracy  with  overt  act 
or,  possibly  more  aj»tly,  a  malicious  libel  not  action- 
id)ley>''r  .V6' and  not  actional)le  without  an  averment  of 
special  damaj^cs. 

The  case  is  not  in  p(»int,  and  besi(h's  its  citation 
here  is  distinctly  noii  srtiiiitttr,  as  the  amount  of  dam- 
af>es,  or  whether  )»roHts  were  alloweil,  (h)esiiot  appear, 
the  parties  hav'u<>'  aj;reed  to  refer  the  amount  t(»  arbi- 
tration. 


*  iSt'o  page  116,  this  argiiiiieut. 


DAMAGES — PROSPECTIVE   CATCH. 


Ill 


(-') 


77/r  tli.^iihif,,  (S  |».  1).,  p.  110): 

{ii)  It  Wiis  not  a  ciisc  of  loss  ot"  the  vessel,  but 
was  a  suit  for  tlaina<;»'s  for  delay  or  deteiitioii  while 
inakiiifi'  repairs  reiuK-nMl  lU'cessary  l)y  tlie  tort. 

(h)  The  suit  apin-ars  to  have  been  between  for- 
eifi'ners,  and  never  to  have  Ix-en  appealed. 

((•)  It  does  not  appear  that  the  point  as  to  proba- 
ble catch  was  niaile  in  the  ca.se  when  rejtorted  by  the 
reji'istrar  and  merchants,  ]»ut  the  defendants  went  to 
proofs  and  contested,  the  point  deciiled  l»ein;i'  a  (pu'.s- 
tioii  of  costs  only. 

('/)  The  case  occurred  in  ISSl;  the  decision  was 
never  treated  as  an  authority  or  cite<l  or  referred 
to  in  any  British  or  American  case  from  the  time  it 
was  rendered  down  to  and  includiiifi'  1S1),5,  inclusive. 
(L.  K.  Di-i'.  to  ISit.^,.) 

(r)  Moreover,  in  the  case  of  T/ic  Xoffhif/-Hill  (!l  IM  >. 
lOll) — an  appeal  case  decided  afterwards — the  case 
of  'I'lic  J{isi)liit(i  is  not  referred  to,  and  it  was  there 
held  that  a  ship  havin;.>'  been  tlama^cd  l)y  collisicm, 
the  owners  claimiufi'  anionji'  other  things  damaiji's  for 
loss  of  market,  the  conse«pU'nce  of  delay,  it  could  not 
be  considered  as  an  element  of  damaye,  atlirmin';'  Sir 
.lames  llannen  in  the  case  of  '/'lie  I'didiia  (2  I'.  I)., 
1(15-1  IS),  where  it  was  held  that  for  a  delay  the 
coiisijiiiee  could  not  recover  dama<>es  for  loss  of 
market,  as  that  element  of  daina<>es  involved  a  mat- 
ter (»f  speculation  (tn  contin<>encies:  In  the  case  of 
LiunI)  r.  Walker  (:J  Q.  H.  D.,  HHd)  it  was  held  (Cock- 
burn,  C  ./.,  dissentini<)  that  prospective  dama<ies  ritnlil 
be  recovered  for  removinjj-  the  lateral  sujjport  of  a 
buildinj"'. 

The  last  case  was  distinctly  and  exjnv  -'  N  over- 
ruled (Ml  this  point  under  the  universal  ruling- a<i;ain8t 


l! 


■^B^"' 


i- 


it,; 


wWW 


112  DAMA0K8 — PROSPECTIVE   OATCU. 

l»n>s|»t'ctiv»' (!;iinii;it's  ill  Ihiilcvr.  .Miti-licll  ( 14  (»>.  M.  !>., 
11  Ap)).,  127). 

(,/)  This  is  not  an  iiiitliority  iis  njiiiinst  tlii'  IciKJiii^i 
Fisliiiio-  ciist^  involving  dircrtly  tiic  iiriiiciplc  of 
iivt'ni;"*'  profits  nil  t'litiirc  ciitcii,  (Un-idcd  hy  I  >r,  Lusii- 
iiiji'ton  (The  ('ohiiiihi(s,  (j  Notes  of  Ciiscs,  siijira). 

Thr  (ilvdiiif  (3  Asp.  Miir.  Ciis.  X.  S.,  AS'i),  iilso 
V('i)oi-t(Ml  ill  .'{H  L.  T.  (N.  S..  (i">(l).  This  wiis  an 
action  lirouji'lit  ajiaiiist  a  trawl  tishiii;ji'  smack,  Tlic 
(ilfdiin;  liy  the  (»\viit'fs  of  the  drift-net  smack  'I'lir 
Jfdiiil  (111(1  Florence,  for  collision.  The  (daiiii  \vas  for 
the  \aliio  of  lu'ts  and  <>car  ami  compeii.sation  for  Ictss 
in  fisliiiiji'.     Tlic  ship  was  not  lost. 

The  report  of  the  re;iistrar  allitwed  f72  tor  the 
earninjis  of  the  smack  for  four  weeks — the  season's 
lisliiii;^'.  The  chiiiii  was  not  ohjec  d  to,  and  the  case 
Avas  not  ill  court  on  the  point  «  owaiice  of  pros- 

jiective  profits,  but  was  reporti  'le  court  on  tlu^ 

HUestioii  of  costs  only.     The  case  was  never  appealed. 

(-t) 

The  AiffeiifiHo  (14  A))p.  C'as.,  p.  "»19):  This  was  not 
a  case  of  total  loss.  Tlie  Jri/entiiio  was  proceedin<>' 
on  a  vova<>e  to  Sevastopol,  dial  she  IkkI  d  coi/lrdct  prn- 
vidinji'  that  as  soon  as  she  dischar<ied  li«'r  carji'o  at 
Si'vastop(d  sli(^  slionhl  proceed  to  Antwerp,  ami  load 
for  another  voyai^e.  liv  reason  of  the  collision  she 
was  prevented  from  fuliiiliii<>'  tlio  contract  for  the 
sec(.iid  voyajic. 

Lord  Ilerschel  announced  to  the  lords  his  views,  as 
follows: 

It  dots  not  appear  to  nie  to  lie  out  of  the  ordinary  course 
of  tliingn  that  a  steamship  while  prosecuting  her  voyage 
should  have  secured  employment  for  another  adventure,  and 
if  at  th(  time  of  collision  the  damaged  vessel  had  obtained 


such  an  engagein 
adventure  ajuiearh 
so<iuence  of  such  t 

• 

Wliere  no  (^laiii 
the  owner  liaving 
voyage  which  was 
IkkI  hvvu  neeitred, 
ii.sual  course,  to  av 
I  age.  ete.  {See  lit 
a  ease  of  "ICxpre.* 
by  Dr.  Lusliington 
supra.) 

Further  comn 


The  case  of  1 
(J.P.D.,2S(»Vsva 
for  pain  aiui  sut 
train.  lie  was 
was  tlio  ordinar 
for  such  dainafre 
iiiff  power  direct! 
mi{;lit  see  tit  to  «, 
thejihysical  injiii 
Ity  a  rule  as  to  i 
of  injuries  to  pre 


Tlic  FdrlHiic  lii 
omissions  in  the 
wliicji  will  he  su] 

The  claim  war 
"there  were  but  f 
two  actually  fishi 
ivere  hdinllinf/  the 
of  the.  entire  Jleet  ( 

It  further  appc 
B  s 15 


DAMAOKS — PROSPKOTIVE   (,'ATCH. 

Hiich  III)  cnKiiceiueiit,  Mie  Idhh  uf  the  iMrniugH  on  sacli  sin 
adviMitiin'  appeiii-H  to  iiie  to  bo  tliu  direct  and  natural  con- 
so(|uenctt  of  .sucli  a  collision. 


113 


Wlioro  no  claim  is  made  in  reHjicct  of  loss  arising  t'roni 
the  owner  having  been  dei)rived  of  t)i»i  eaniiiigs  on  tlio 
voyage  which  was  in  contemplation,  mi  cuinujimtnt  Joy  nhivh 
hull  liirii  Ht'ciired,  it  would  be  rifrht,  and  is  no  doubt  the 
usual  course,  to  award  damages  under  the  name  of  demur- 
raf^e,  etc.  (See  this  very  exception  to  the  general  rule,  i.  e,, 
a  case  of  "I'^xprcsL*  contmct  for  the  hire  of  the  ship,"  notw<l 
by  J)r.  r^ishington  in  the  ctase  of  The  (JoIiihiIhih,  as  quoted, 
supra.) 

Kiirtlun-  c'oinnu'Ut  seems  luiiKM'eHsnry. 

(->) 

The  case  of  Phillips  v.  [.(.iidoii  iu»<l  N.  W.  U.  \i.  (5 
(J.  V.  ]).,  "iSO)  WJI8  an  iu'tioti  t'of  perstuial  iiijurit's  and 
t'(ir  pain  and  snffcrinj;,  by  a  passenjjcr  on  a  railroad 
train.  lie  was  a  surj^eon  in  active  jmiotico,  and  it 
was  the  ordinary  case,  ffovernod  by  its  own  rules, 
tor  such  daniaj^es,  includin<;',  of  course,  loss  <if  earn- 
iiiff  power  directly  traceable  to  the  accident,  as  a  jury 
mif^ht  see  tit  to  <;'ive  under  the  evidence.  Cases  for 
the  jdiysical  injtu'v  of  persons  are,  of  course,  <>overned 
by  a  rule  as  to  dauiajies  entirely  di.stinct  from  tho.se 
of  injuries  to  jirojjerty  or  pntperty  rights. 

'/'//('  Forfuiic  lidji  cases:  There  are  some  luifortunate 
omissions  in  the  statement  <»f  facts  in  this  citation 
which  will  be  supjdied. 

The  claim  was  for  8120,000,  and  while,  as  stated, 
"there  were  l»ut  four  vessels  out  of  the  Heet  ot  twenty- 
two  actually  lishinji',"  it  apjwaii'il  that  those  fimr  vessels 
irere  haiidlint/  the  seines  in  liehalf  of  and  for  the  henejit 
of  the  entire  fteet  of  twentji-two. 

It  further  appeared,  and  was  proved  incontestably, 
B  s 15 


:'*:'., 


X,.t- 


■p  iilJlU'.iiSUfi  "11 


i 


114  UAMACES — l'ROSPE(;TIVt:    CATCH. 

that  in  tlio  seines  at  the  t'nuv  of  the  tod,  and  therefore 
in  jKissessiou,  tliere  were  suttieieiit  tisli  to  <;ive  a 
full  canjo  to  ciyi-//  one  of  tlir  tiveutif-tiro  vrsscls;  aiul 
that  by  the  act  of  the  tort  feasors,  the  projjerty  iu 
lish  so  aetually  at  the  time  in  possession  of  the  Heet 
was  lost  to  them. 

Theelaini,  therefore,  was  not  for  i)ros})eetive  jn'oHts, 
bnt  for  property  actually  taken  from  the  fleet. 

Tiiere  was  no  agreement  or  decision  jjiving  esti- 
mated profits  or  averafie  ])rofits,  or  j)r<is})eetive  catch, 
or  probable  catch.  The  result  was  the  jiaAinent  of 
87r),00O  on  the  claim  thus  made  for  8120,000.  This 
authority  is  adverse  to  the  Hritish  contention.  There 
was  absolute  certainty  as  to  amount  on  the  evidence. 

Of  course  none  of  the  vessels  were  lost  to  the 
ownei's. 

The  statement  in  the  British  arfiument  is  compared 
with  the  record  of  the  cases  a))pearinjji'  in  vol.  72, 
]?rit.  State  rajH'rs,  1S80,  1881,  particularly  at  pp. 
12S2,  1-J8!t,  i;{07,  and  with  the  following  (puJted  frnn 
that  record: 

The  evidence  in  this  case  shows  tliat  the  catch  which  the 
I'nited  States  lishiiig  lleet  on  tliis  occasion  actnally  realized 
vas  e.\cei)tionally  hirjic,  and  wouhl  have  supplied  profitable 
cargoes  for  all  of  them  (p.  lii.si»). 

Moreover,  it  was  admitted  in  terms  by  CJreat 
IJritain  as  a  matter  of  fact  that  beyond  any  contin- 
gent-y  or  speculation  if  the  American  vi  ssels  had  not 
been  disturbed  they  would  have  iilleil  every  one  of 
the  vessels. 

8o  that  we  must  differ  from  the  conclusion  of  the 
IJritish  ar<>unu'Ut  here,  on  this  citation,  tliat  tlu*  set- 
tlement by  the  ])ayment  of  a  lump  sum  "implied  the 
'•onsent  of  both  nations  in  the  j»rinciple  involved  in 
the  claim  for  catch." 

If  the   j)rinciple  of  prospective  catch  should  (iver 


It   ' 


I^'l      '  ""''PI 


Ih'  ('(MU'cdcd  jit  .••11  in  cases  wlieiv  tlic  owikt  sut- 
t'ors  ii  total  loss  of  the  cariiiiij:'  iiii'diiim,  there  would 
be  no  reason  or  lojiii*  in  allowin*;'  liiin  for  one  season 
onlv;  his  loss  of  earnin<is  are  certainly  continuous, 
and  this  the  law  recojiiiizes  whenever  it  <iives  inter- 
est, which  the  l)o(»ks;  invariably  siK'ak  of  as  the  coni- 
pensation  jiiven  in  lieu  of  prospective  jirofits.  which 
can  not  be  allowed. 

A  moment's  retlection  will  be  convincin<i'  that  if 
the  theory  of  future  prolitv.  is  correct  at  all  it  can 
not  be  a  iiiatti'r  of  a  season  or  a  yi-ar,  but  must  find 
ft»r  its  commencement  and  end  the  j>rinciple  that  the 
owner,  havin;^'  lost  the  earnin<>'  instrument,  he  should 
be  eutitU'd  to  what  it  would  have  earned  him  tiKlate, 
as  for  instance  in  the  ci;se  of  t(»rt  for  a  continuinji' 


nuisance. 

rir 


The  remaininji'  proposition  of  the  Hritish  ar<>unu'nt 
in  su[»port  of  the  claim  for  prospective  profits,  resting- 
on  cases  like  that  of  Allison  r.  ('handler  (11  .Mich., 
r)42),  cases  of  personal  injuries,  cases  of  profits  on 
special  contract,  and  cases  involvinji'  malice,  wantou- 
ne.s.s,  orjjross  nei>liji-ence,  W(»uld  not  be  seriously  con- 
sidered buf  for  the  fact  that  counsel,  for  whose  Icarniui"- 
and  ability  there  is  entertained  the  most  sincere  and 
profound  respect,  liave  aj^ain  so  far  yielded  to  their 
instructions  as  to  set  it  down  for  the  consideration  of 
this  Iliji'h  Commission. 

'V\w  "iult  is  so  wide  lietwei-n  flic  |>ropositiou  apply- 
inji'  here,  as  heretofore  discu.ssed,  and  this  one,  as  to 
permit  of  no  contact  t)r  induction  at  any  point,  and 
till'  very  text  writers  and  ca.ses  cited  to  sustain  the 
latter,  as  will  be  seen  presently,  point  out  the  broad 
distinction. 

it  will  l)e  treated  under  the  hi  id  iti'  (IdiiKif/rs  jinii'i- 
tori/  or  r'nidictirt'  in  rcs/xtt  iij    inintomirss,  iiHilicf,  or 


ffro,'<s  iici, 


■flii/r 


iicr. 


"^<^<l  ]i.  IL't),  iii/ni. 


DAMAGKS — I'KOSl'KCTIVK    CATCM. 


115 


116 


DAMAGES- 


'  WARNINGS.' 


Coiiipensation  in  respect  of  waniiin/s. 

It  will  bo  si'oii  by  the  recoril  tliiit  with  the  exrop- 
tion  of  schooners  owned  in  whole  or  in  part  by  Ameri- 
can citizens,  there  are  but  two  cases  in  which  any 
substantial  recovery  can  be  had  as  for  "  warnin<^s  out," 
or  as  to  which  the  (juestion  of  damages  is  wt)rthy  of 
serious  consideration. 

In  the  other  cases  of  warnings  it  appears  by  the 
evidence  either  that  there  was  found  to  be  no  warn- 
ing- by  the  Paris  'J'rilnmal,  or  the  warning  s(»  found 
was  not  heeded  so  far  as  to  materially  atlect   the 

VOAilgO. 

It  is  conceived  that  on  principle,  cases  of  warnings 
should  be  treat»Ml  as  are  cases  of  marine  tort  result- 
ing, not  of  course  in  loss  of  the  res  or  any  part  of  it, 
V)ut  in  detention  or  interruption  of  tlu;  voyage,  luii- 
versally  considere<l  under  the  head  of  "Partial  loss.'' 
In  such  cases  the  doctrine  heretofore  discussed,  as 
has  been  seen,  applies  with  e([ual  force  against  ])ro- 
spective  jiroiits  as  such — tlie  rule  against  contingencies 
being  e(|iially  strong. 

This  distinction  in  the  rule  of  damages  in  cases  of 
partial  loss,  or  detention  from  earning,  is  n(»where 
more  clearly  drawn  than  by  Dr.  hushington  in  the 
case  of  the  ('iihiiiilnts.      (Si(jtni,  3  W.  Hob.,  p.  loD.) 

Sedgwick,  in  his  work  on  Damages  (Vol.  1,  \).'2'u), 
after  discussing  the  rule  in  cases  of  partial  loss  under 
the  head  "Cases  of  entire  loss  do  not  fall  within  the 
rule,"  says: 

It  is  important  to  observe  that  actions  brouglit  for  tlio 
immediate  destruction  of  proi^'ity  do  not  involve  any  <iues- 
tion  of  {jain  itreventetl.  If  payment  is  asked  for  destruction — 
that  is,  lor  tlie  whole  value  of  the  property — it  is  upon  the 
theory  that  the  iilaintitf's  entire  interest  in  the  proi)erty 
seized  at  the  time  of  the  in.jury  was  replaced  by  a  right  to 
have  the  value  of  the  proi)erty  in  money.  Since,  therefore, 
the  plaintilf  no  longer  has  title  to  the  projjcrty,  he  can  no 
longer  claim  he  might  make  a  future  gain  from  it,  and  his 
recovery  is  limited  to  the  value  of  the  property  at  the  time 
and  place  of  destruction,  with  interest. 


DAMAOKS "  WAHNINGS." 

And  see  Dr.  I.usliiii'fton  in  the  ciiso  of  tlio  VJifde 
(8\viib.  A.l.  M). 

In  sncli  cast's  the  Supronu'  Court  of  tho  United 
States  have  aih>j»ted  the  rule  of  tlie  Kn<;lish  jiKlfJf- 
nients  in  eases  of  partial  loss,  distin<>uishin<j^  always 
l)ot\veen  a  ease  of  total  loss  and  a  ease  of  i)artial 
(laniajic  or  detention. 

Williamson  r.  Barrett  (13  Howard,  101)  was  a 
case  of  tiiis  kind,  and  the  court,  at  pajie  110,  says: 

Thejiny  was  iiistnicted  if  tliey  Ibuiul  for  tlie  plaintitis  to 
<i;ive  (huiiaKes  that  wouul  leinuiiorate  them  for  the  hws  nec- 
essarily incurred  in  raising  the  boat  and  repairing  her,  and 
also  for  the  use  of  tlie  boat  during  the  time  ne(!essary  to 
make  the  repairs  and  lit  her  for  business, 

liy  the  use  of  the  boat  we  luulerstand  what  she  would  pro- 
duce to  the  pliiintids  by  the  hiring  or  chartering  of  her  to 
run  upon  the  river  in  tlie  business  in  which  she  had  been 
usually  engaged.  The  general  rule  in  regulating  damages 
in  cases  of  collision  is  to  allow  the  injui'ed  party  an  indem- 
nity to  the  extent  of  the  loss  sustained.  This  general  rule 
is  obvious  enough,  but  there  is  a  good  deal  of  dilliculty  in 
stating  the  grounds  ujioii  which  to  arrive,  in  all  cases,  at  the 
proper  measure  of  that  indemnity.  The  expenses  of  raising 
the  boat  and  of  repairs  may,  of  course,  be  leadily  ascertained, 
and,  in  respect  of  the  repairs,  no  deduction  is  to  be  made,  as 
in  Insurance  cases,  for  tlic  new  materials  in  i)lace  of  the  old. 
The  claim  lies  in  estimating  tl  damage  sustained  by  the 
loss  of  the  service  of  the  ve>  while  she  is  undergoing 
repairs.  That  an  allowaiuu"  shmi  lU  some  com))ensation  for 
this  loss  would  fail  to  be  an  indemnity  for  tlic  injury  is 
a])parent. 

Tliis<|ue8tion  was  dire(;tly  before  the  court  of  admiralty  in 
lOngland,  in  the  case  of  the  (lazeUv,  ilecided  by  Dr.  Lush- 
ington,  and  in  deciding  it  the  court  observed:  "That  the 
jiarty  who  had  sulfered  the  injury  is  clearly  entitled  to  an 
adeipnite  compensation  for  any  loss  he  may  sustain  for  the 
detention  of  the  vessel  during  the  |)eriod  wliieh  is  necessarv 
for  the  completion  of  re])airs,  and  furnishing  the  new  articles." 

In  lixing  the  amount  of  the  damages  to  be  \\i\\i\  for  the 
detention,  the  court  allowed  the  gross  freight,  deducting  so 
nnich  as  wcmld  in  ordinary  cases  be  disbin\sed  on  account  of 
the  ship's  exjM'Uses  in  earning  it. 

A  case  is  referred  to.  decided  in  the  common  law  courts,  in 
which  the  gross  freight  was  allowed  without  deductions  for 


117 


118 


DAMAGES — "warnings." 


expenses,  wbieb  was  disiipproved  as  iiieijuitable  and  exceed- 
ing an  adequate  compensation,  and  the  qualification  we  have 
stated  hiid  down. 

This  rule  may  attord  a  very  fair  indeii.;iity  in  cases  wlieie 
the  repairs  are  completed  within  the  period  usually  occupied 
in  the  voyage  in  which  tlie  freight  is  to  be  earned.  Uut  if  a 
longer  period  is  reciuired,  it  obviously  falls  short  of  an 
ade<iuate  allowance.  Neither  will  it  apply  where  the  vessel 
is  not  engaged  in  earning  freight  at  the  time.  The  principle, 
however,  governing  a  court  in  adopting  the  freight,  which  the 
vessel  wsis  in  the  act  of  earning,  as  a. just  measure  of  compen- 
sation in  the  case,  is  one  of  general  applicaticm.  It  looks  to 
the  capacity  of  tiie  vessel  to  earn  freight  for  the  benefit  of 
the  owner,  and  conseiiuent  loss  sustained  while  deprived 
of  her  services.  In  other  words,  to  the  amount  she  would 
earn  him  on  hire. 

It  is  true  in  that  case  a  ship  was  engaged  in  earning 
freight  at  the  time  of  the  collision ;  and  the  loss,  therefore, 
more  fixed  and  certain  than  in  a  case  where  she  is  not  at  the 
time  under  a  charter-party,  and  where  her  earnings  must,  in 
some  measure,  depend  upon  the  contingency  of  obtaining  for 
her  employment.  J/',  however,  irc  look  to  the  ilemami  in  the 
market  for  resneln  of  the  deserijition  that  han  been  tUsableil, 
and  to  the  price  there  irhieh  the  owner  could  obtain  or  might 
hare  obtained  for  her  hire,  an  the  measure  of  compensation, 
all  this  uncertainty  disappears.  If  there  is  no  denumd  for 
the  employment,  and  of  course  no  hire  to  be  obtained,  no 
compensation  for  the  detention  during  the  repairs  will  be 
allowed,  as  no  loss  would  be  sustained. 

But  if  it  can  be  shown  that  the  vessel  might  have  been 
chartered  during  the  period  of  repairs,  it  is  iinjiossible  to 
deny  that  the  owner  has  not  lost  in  consecpience  of  the  dam- 
age the  amount  which  she  might  have  thus  earned. 

Tlie  market  price,  therefore,  of  the  hire  of  the  vessel, 
applied  as  a  test  of  the  value  of  the  services,  will  be.  if  not 
as  certain  as  in  a  case  where  she  is  under  charter  party,  at 
least  so  certain  that  for  all  i)ractical  purposes  in  the  admin- 
istration of  Justice  no  substantial  distinction  can  be  made. 
It  can  be  ascertained  as  readily  and  with  as  imw.h  ju'ecision 
as  tlie  i»riceof  any  good  conuuodity  in  the  market,  and  aflords 
as  clear  a  rule  for  estimating  the  damages  sustained  on 
account  of  tlie  loss  of  her  servi<!es  as  exists  in  the  case  of 
damage  to  any  other  descrijjtion  of  personal  i)roperty  of 
which  the  jiarty  lias  been  deprived. 

In  the  case  of  the  (lazellv  they  held  the  jtosition  that  an 
allowance  of  freight  aflbrded  a  full  indemnity  for  the  deten- 
tion of  the  vessel  while  undergoingrepairs.    This  would  be  so, 


DAMAGES — "  WARNINGS. 


119 


ii8  alreaily  stated,  if  they  were  made  within  the  period  she 
woukl  have  beeu  engaged  in  earning  it.  If  it  were  otherwise, 
it  is  eertain  that  the  indemnity  allowed  fell  short  of  the  rule 
laid  down  under  which  it  was  made,  which  was  that  the  party 
was  entitled  to  adequate  compensation  for  any  loss  he  might 
sustain  for  the  detention  of  the  vessel  during  the  period  which 
was  necessary  for  the  completion  of  the  repairs  and  furnish- 
ing new  articles.  The  allowance  of  freight  she  was  earning 
at  the  time  was  but  a  mode  of  arriving  at  the  loss  in  a  par- 
ticular case  under  the  general  rule  thus  broadly  stated,  and 
artorded,  doubtless,  full  indemnity.  We  are  of  opinion,  there- 
fore, that  the  rule  of  damages  laid  down  by  the  court  below 
was  the  correct  one,  and  is  properly  applicable  in  all  similar 
cases.  There  was  no  (piestion  made  in  respect  of  tiie  freight 
of  the  vessel,  hence  the  general  principle  existing  wasap])li- 
cable  irrespective  of  this  element  as  iiiHuencing  the  result. 

Tlie  onsc  of  tlie  (iazellc  (2  W.  Rob.,  27!l)  ivferrefl 
to  in  tlie  torc'g(»iii<j'  opinion,  is  the  lea(lin<>'  Kn<i;'lisli  case 
on  tlie  subject  of  partial  loss  as  (listin<>iiislie(l  from 
cases  of  total  loss. 

It  may  be  observed  in  passinj>'  that  in  the  case  of 
the  Clyde,  supra  (Swab.),  Dr.  Lushin^ton  (puttes  Ur. 
Twiss  as  refei'i'in<>-  t(»  the  above-cited  case  (»f  the  (fa- 
zrlh',  and  sayin<>',  that  a  pai'ty  was  in  a  better  situation 
who  received  only  partial  damage  than  one  whose 
pniperty  was  totally  destroyed. 

Dr.  Lushiufi'ton  comments:  "This  is  undoubtedly 
true,  but  it  does  not  affect  the  ))rinci])le." 

The  Befseif  Cn'nies  (2  Ha<>'.,  2!))  was  a  case  of  col- 
lision, wherein  the  injured  vessel  was  at  the  time 
en<i:a<;'ed  in  salvajje  of  a  foreijjfu  ship,  and  Lord  8to- 
well,  altlioufi'h  holdin<.>'  that  there  was  not  sufHcieiit 
evid(!nce  to  support  the  recovery,  said: 

No  authority  has  been  mentioned  by  which  the  court  might 
be  induced  to  consider  itself  excluded  from  considering  a 
•luestion  of  consequential  damage.     »     •     * 

Besides,  this  is  not  a  mere  claim  for  consequential  orproba- 
lile  charge  only,  if  the  smack  was  ivctually  in  the  ]mrsuit  of 
earning  that  which  it  had  been  stipulated  she  should  receive.* 

'Again  a  case  of  certain  (laiiiajtes  in  tort  inoasured  by  au  existin);  cou- 

Iriict. 


iW\ 


120  DAMAGES — "WARNINGS." 

And  see  wlicre  the  (listiiictions  iirc  drawn  between 
total  and  j)artial  loss,  and  yet  where  in  every  case 
mere  ]»ros|)eetive  daniaj^es  are  exchided,  the  tbllowin<>': 

1  ladle V  r.  Haxendale  (!)  Exeheciiier,  Hep.,  o41),  a 
case  of  special  contract. 

Tin-  yoftiiif/liill  (;»  V.  1)..  109,  siipi-d);  delay  by 
collision  resnltinji'  in  the  cancellation  of  a  charter- 
party — the  charterers  having  a  right  t(»  cancel  the 
charter-party  for  delays,  liad  canceled  it,  and  the 
court  held  the  tort  feasor  liable  for  the  loss  of  the 
charter-])arty,  the  actual  loss  being  cajiable  of  exact 
computation  as  between  the  amount  to  be  paid  for 
the  charier  and  the  amount  actually  earned  by  the 
ship  in  less  profitable  em|)loyment;  but  in  that  case 
it  was  held  that  there  nuist  be  deductions  from  that 
sum  for  wear  and  tear,  for  the  difference  in  the  length 
of  the  voyages,  and  for  the  uncertainty  incident  to 
all  sea  voyages. 

Tlir  Coiisctt  (5  P.  1).,  229)  was  a  case  of  collision 
and  loss  of  charter  thereby.  Of  course  the  charter 
was  in  esse,  and  the  loss  capable  of  s|)ecitic  compu- 
tation. 

On  the  other  hand,  in  the  Forarm  (2  I*.  I).,  118), 
which  was  •;  suit  for  loss  on  account  of  a  delay  of 
three  months,  the  loss  having  been  alleged  on  the  fall 
in  the  price  of  cargo,  and  there  having  been  no  con- 
tract for  the  price,  it  was  held  that  there  could  be  no 
recovery  for  the  loss  of  market. 

Tlir  (Hurciirr  (\\  W.  Hob.,  L'SS)  was  a  case  of  col- 
lision and  detention.  In  this  cassi'  it  was  attempted 
to  ]tro\e  the  loss  b\"  e\iilence — as  in  this  casi' — of 
average  earnings  of  other  vessels. 

'J'he  court  said: 

The  (|iK'stion  wbich  I  liavc  to  deterniiiie  is  iu>t  the  rate  at 
which  such  a  vessel  as  the  t'hnriicc  might  be  hired  out,  but 
liow  uiuch  the  foiupany  have  actually  h)8t  by  lier  detention 
whilst  !uider  repair.    *     •     • 


DAMAGES — "  WAKNINOS. 


121 


*  *  •  lu  order  to  entitle  a  party  to  be  iiuleiiuiifled 
for  what  is  termed  in  this  conit  a  coiise(|iiential  loss, 
being  tor  the  detention  of  liis  vessel,  two  tilings  are  abso- 
lutely necessary,  uetnal  loss  and  reasonable  proof  of  the 
amount.    •    »    • 

The  objection,  it  appears  to  me,  has  been  founded  upon  a 
misapprehension  of  tlie  principle  upon  wiiich  a  court  pro- 
ceeds in  assessing  the  amount  of  danmge.  It  does  not  fol- 
low, UK  (t  miittir  of  nivcsxitu,  that  anytliing  is  due  for  the 
detention  of  tlie  vessel  whilst  under  repair.  Under  some 
circumstances  un<loubtedly  such  a  conseiiuence  will  follow, 
as  for  example,  wiiere  a  tisliing  voyage  is  lost  or  wiiere  a 
vessel  would  have  been  beneficially  employed.  The  onus  of 
l)roving  lier  loss  rests  with  the  plaintilf,  and  this  onus  lias 
not  been  disciiarged  upon  the  prweiit  occasion.  Had  the 
owners  of  the  VlurviuT  jiroved  tiiat  the  vessel  would  have 
earned  freight  and  that  such  freight  was  lost  by  tliecollisicm, 
the  case  would  have  fallen  within  tlie  priiieiiile  to  which  1 
have  last  adverted. 

A  well-roisoiu'd  citsc  on  an  cxliiinstive  review  of 
tlu'  autlioritii's  is  Wulcutt  et  al.  r.  Mdiiiit  (3(i  N.  J. 
Law,  -iO-i-'iTl). 

The  ocnirt  sa^'s: 

It  must  not  be  sup|)osed  that  under  the  principle  of  Ilad- 
ley  r.  liaxendale  (tLe  special  contract  case  in  9  Ivxc,  supra) 
mere  s]teculative  ]irotits,  such  as  might  be  (lonjectured  to 
have  been  tlie  probable  results  of  an  adventure  which  was 
defeated  by  the  breach  of  the  contract  sued  on,  the  gains 
from  which  are  entirely  conjectural,  with  respect  to  which  no 
means  exist  of  ascertaining,  even  apiiroximately,  the  jirob- 
able  results,  can,  under  any  circumstances,  be  brought  within 
the  range  of  damages  recoverable.  The  cardinal  principle 
in  relation  to  the  damages  to  be  comiiensated  for  on  the 
breach  of  a  contract,  that  the  plaintitV  must  establisli  the 
quantum  of  his  loss,  by  evidence  lioiii  which  the  jury  will  be 
able  to  estimate  the  extent  of  his  injury,  will  exclude  all 
such  elements  of  injury  as  are  incapable  of  being  ascertained 
by  the  usual  rules  of  evidence  to  a  reasonable  degree  of 
certainty. 

For  iiisttiiict',  profits  ejpi'vteil  to  Ite  mailv  from  a  irhuthnj 
roi/agc,  the  i/ains  from  irhirh  dcpcnil  in  a  j/rt'ot  miasnre  upon 
vlitinre,<(r('  too pnreli/  conjcrtnrtil  to  iw  lopolilv  of  cntcrintj  into 
compensation  for  the  nonperformance  of  a  contract  by  reason 
of  which  the  adventure  was  defeated.  For  a  similar  reason, 
the  loss  of  the  value  of  a  crop  lor  which  the  seed  had  not 


- 1 


u  s- 


-10 


122  DAMAGES "warnings." 

been  sown,  the  yield  from  wliiiili,  if  ])lanted.  would  depend 
n])on  tlie  contingencies  of  wentlier  iind  season,  would  be 
excluded  as  incapable  of  estimation  with  tliat  degree  of 
certainty  which  the  law  exacts  in  the  proof  of  damages, 
Hut  if  the  vessel  is  under  (charter,  or  engaged  in  a  trade,  the 
earnings  of  which  <'an  be  ascertained  by  reference  to  tiie 
usual  schedule  of  treights  in  the  market,  or  if  a  cro])  has  been 
sown  on  the  ground  jtrepaied  for  cultivation,  and  the  ]>hiin 
tin's  complaint  is  that  because  of  the  infeiior  quality  of  the 
seed  a  cro|>  of  less  value  is  produced,  by  these  circum 
stances  the  means  would  be  furnished  to  enable  tlie  jury  to 
make  a  jiroper  estimation  of  the  injury  resulting  from  the 
loss  of  prolits  of  this  character. 

Till'  Maylu'V  ens*',  rcitortcil  in  4  HIiitclit'.,  43'K  wns 
(iooidt'd  l)y  Nelson,  circuit  jiidjic  nt'terwiirds  of  the 
Suprt'ine  Hc'iicli  of  tlic  riiitcd  States.  It  was  jin  ap- 
jK'al  from  the  decree  of  the  district  court  in  a  case  of 
collisi(»n,  partial  daniajie,  and  detention. 

Justice  Nelson  says: 

Theaggregateof  the  bills  jnoved  for  rei)airs,  etc.,  i881,<iO8.0;5, 
The  commissioner  had  reported  damages  to  the  amount  of 
$.'>.l'(JL'.;i(t.  If  interest  be  added,  say  for  live  years  from  the 
1st  of  November,  18."»l.  to  the  date  of  the  report,  October  lit, 
18.V.I,  upon  the  bills  for  rei)airs,  etc.,  which  inteiestis  *r)."»4.17, 
making  the  aggregate  *l.',l(iL!..S(»,  whicli,  deducted  from  the 
amount  rei>orte(l,  leaves  a  balance  of  8l.0iM>.r>(),  which  nmst 
liavc  l)eeii  allowed  for  the  fourteen  days' demurrage.  I  am 
not  satistied  that  tlie  |)roors  bring  the  case  u|>on  tliefiuestion 
<if  damages  within  the  rule  laid  down  in  Williamson  r.  liar- 
rett  (l.'i  Howard).  A  good  deal  of  the  testimony  was  gen- 
eral and  turned  upon  mere  o|iinion  as  to  the  probaliility  ot 
em]>loyment  in  the  towing  business,  and  the  amount  of  tlie 
earnings  if  employed. 

This  kind  of  jn'oof  is  too  siicculative  and  contingent  to  be 
a  fonmlatioii  for  any  rule  of  damages.  It  is.  at  best,  a  con- 
Jectine.  The  true  (|nestion  within  the  case  of  Williamson  r. 
Uarrett  was  what  could  the  tug  ha\e  been  chartered  for  i)er 
day  in  the  business  of  towing,  rvijuril  Ihuki  hod  in  the  maihrt 
]>rici'  in  the  i-iti/  of  Siir  Yorh.  This  would  have  i)rought  the 
(piestion  down  to  some  degree  of  certaint.y  and  atlbrded 
ground  for  an  intelligible  allowance  or  lutt  of  the  loss  whicli 
the  libeilant  had  actually  sustained  by  the  delay  during  the 
rei)airs.  The  facts,  as  left  by  the  examination  by  the  com 
missioner,  are  too  uncertain  to  form  a  basis  of  any  allowance 


M 


DAMAGES — "WARNINGS. 

for  the  detention.  They  are  s])ei'iilivtive  and  conjectural  and 
mere  opinion,  *.o  which  no  limit  or  rule  can  be  a]>|)lied,  and  it 
can  never  lay  the  foundation  for  the  action  of  a  court  on  this 
Hubject.  I  shall  therefore  strike  out  the  item  of  demurrage, 
i!!l,(Vj!>.'»0,  and  confirm  the  decree  for  )?-,102.80;  costs  to  i>e 
allowed  on  the  appeal  to  neither  party  as  against  the  other. 

Fletclier  r.  Tayloiir  (17  ('.  li.,  2(1)  is  somotiincs  cited 
on  the  <iucsti(Ui  iiiidcr  discussion.  TIr'  point  was  not 
hi't'oru  till'  court  or  raised,  ami  tlic  tollowin<i'  is  the 
syllabus  of  the  case: 

In  an  action  for  the  noncoinplction  of  a  ship  ])ursuant  to 
the  contract,  tlie  Jary  having  given  by  way  of  damages  the 
difference  between  the  net  freight  which  the  vessel  i)robably 
would  have  earned  had  she  been  ready  at  the  time  stipnlat'^d 
and  the  amount  actually  earned  by  her  when  delivered  some 
months  later,  when  freights  in  tiic  i)articular  tra«le  were 
lower,  no  tiiti'stimi  hariuij  hveii  niiKctI  at  the  trial  <ik  to  the 
priitriple  iiitoii  which  damtijies  inti/ht  to  hare  been  axsexsed,  the 
court  refused  to  disturb  their  verdict. 

Evidence  was  merely  intn»duced  as  to  the  value  of 
one  v<»ya<;e  which  would  have  lieen  undertaken  had 
the  vessel  lieeii  delivered  to  the  plaintiffs,  and  the 
freiji'lit  to  l)e  earned  was  the  market  rate  which  was 
fixed  and  subject  to  absolute  proof 

And  see  the  same  distinction  and  ])rinciple  applied 
in  Hoston  Kailwav  r.  O'Keillv  (15S  V.  S.,  3.-{4),  IJicli- 
moiid  Railroad  r."Klliott  (14!t  V.  S.,  26(i),  Howard  r. 
Stillwell  Co.  (l.'V.l  r.  S.,  l!)il),  (4nflin  r.  VoUvr  (16 
N.  Y.  court  of  ap|)eals,  4S!I).  In  the  last  ease,  on  a 
similar  (luestion,  .Mr.  .Justice  Selden,  in  delivering'  the 
opinion  of  the  court,  said: 

In  an  action  against  the  vendor  for  noi;  uelivering  chattels 
sold,  the  vendee  is  allowed  the  market  price  for  the  <lay  fixed 
for  the  delivery.  Althontih  this,  in  Itoth  cases,  <imonnts  to  an 
alloicunce  of  profits,  i/et,  as  those  profits  do  not  depend  upon 
anil  contimjencii,  recover i/  is  permitted. 

It  is  regarded  as  certain  that  the  goods  would  have  been 
worth  the  established  market  price  at  the  place  on  the  day 
when  and  where  they  should  have  been  delivered. 

On  the  other  hand,  in  cases  of  illegal  capture,  or  of  an 


123 


M 


124  DAMAGES — "VVAKNINGS." 

iiisiuaiiCL'  on  godtla  lost  at  aea,  tliPie  can  be  no  locoveiy  lor 
the  probable  loss  of  protits  at  the  i)ort  of  destination.  The 
])rineipal  reason  for  the  ditl'erenee  between  those  eases  and 
that  of  failnre  to  transport  };oods  upon  land  is  that,  in  the 
latter  case,  the  time  when  the  fjoods  shonhl  have  been  deliv- 
ered, and  eonseiiiiently  that  when  the  market  jtrice  is  to  be 
taken,  can  be  ascertained  with  reasonable  certainty,  while 
in  the  former  the  llnctnation  of  the  markets  and  the  eontin 
gen(!ies  all'ecting  the  lenjith  of  the  voyage  render  their 
calcnlation  of  protits  speculative  and  nnsafe. 

Tliis  jiidfi'iiu'iit  isiiii  cxliiiustivc  cxjiiiiiiiatioii  of  tlic 
iitlioi'itics  ii|i|tlyiiiii'  to  the  |)n'Sfiit  (|iU'stioii. 

'I'nicott  /•.  ('ri|iii('ii  (r»2  Midi.,  (!i5;{),  di-cisioii  1>\ 
Coolcy,  r. ./. 

Ill  IJrowii  v.  Siiiitli  (I'J  ( 'usliiiiji',  i{(i(i),  the  court 
says: 

The  (ioiijectnral  or  jtossible  jtrofits  of  a  wlialiii;i-  voyajic 
can  not  lie  taken  into  consideration  in  estimating  the 
daniaji'es. 


ni 


jirofits  as  ii  iiu-asurt'  of  dairiiiLics  in  ruses  of  tort  or 
coiitriict  liavc  never  lieen  allowed  as  such,  saxc  wliert' 
at  tlie  tiiiii'  of  tlie  tort  or  of  tlie  lireacli  of  contract 
evidence  <  oiild  lie  adduced  of  a  certain  t-liaracter  in 
tlie  nature  of  a  definite  and  certain  aiiioiint  to  lie 
realized  if  tlie  lireacli  or  tlie  delay  from  tort  had  not 

OCClllTcd. 


un  Tlie  seannji'   nusiness  in  rue  .\oriii   i  acme  or  in 
le  .\sian  seas. 
On  the  other  h  uid,  unlike  the  cases  of  detention 


('■  I 


DAMAOKS- 


'  WARNINGS. 


125 


wlicrc  liiisiiu'ss  is  lost,  tliore  is  no  wear  ami  tear  to 
l)e  estimated,  as  the  slii|)  did  not  enter  upon  the  voy- 
a<;('.  tor  (h'tention  froiii  which  compensation  is  claimed. 
(^Mioiid  tlu'  tort,  every  ship  and  e(piij»m«'nt  was  as 
yood  as  ever  after  the  period  ot"  delay. 

A  fair  charter  value  in  such  cases  would  be  the  rule. 

Milt,  on  the  whole,  it  is  siihniitted  that,  as  hy  inter- 
national law  l»etween  nations  there  is  no  rule  as  to 
interest  or  the  rate  of  interest,  somethinj;- in  the  nature 
of  a  substantial  return  on  the  amoiiiit  invested  should 
be  awarded  to  the  owners  of  the  slii|)s  of  Ihitish  sub- 
jects tor  the  season's  sealiiiji'  voyajic  for  which  the 
vessel  was  (Mpiipped,  and  from  realizin;^'  on  which  she 
was  prevented  by  the  warning;'.  'I'lie  j»riiUMi»le  adopted 
l)v  the  Hoard  of  Trade  in  their  reports  on  tlu-  chiiin 
of  the  whalers  in  the  case  l)etbre  tiie  (ieiieva  Tri- 
liiinal  is  a  reasonable  one.* 

Story,  ./.,  in  the  case  of  the  l/inlji  (1  (Jail.,  i515), 
which  was  a  case  of  iinlawtiil  capture,  said: 

I  slnill  allow  dciiuirrafie.  iiu'lii(liii}>'  tlicreiii  wajica  and 
expenses  of  the  ship  IVoin  the  time  of  capture  until  she  could 
retain  to  the  place  of  capture. 

Siibstantiall\'  the  same  |»rincipK'  was  involved  iu 
the  decisions  that  have  lut-n  considered  in  the  discus- 
>ion  of  partial-loss  cases. 

ill  this  <'onnection  it  slioiild  be  oliserved  that  in  the 
case  of  the  forty-one  whalers  as  to  which  there  was 
Ml  much  discussion  as  to  prosjiective  profits  in  the 
( iciieva  case,  manv  of  the  whalers  were  not  destroyed, 
Init  were  ca|»tured  and  bonded,  and  driven  fnan  the 
sealinii' jiToiiuds.  Others  were  utilized  l)y  the  captors 
lor  the  purpose  of  rerieviii<^'  their  ships  of  ca[)ti."es 
taken  from  other  vessels  destroyed,  and  thus  were 
not  onlv  driven  from  the  sealinji'  firounds,  but  were 
sent  on  the  service  of  the  captor-s. 


'  r.  97,  siipm. 


120  DAMAGES — I'lINITOKY,    ETC. 

Tliis  appi'iirs  by  tlio  sclu'flulc  and  sfahMuciit  of 
claims  in  the  record  of  tlic  proci-odin^'H  at  (Jciicva, 
but  for  more  coiivt'iiiciit  reference  as  to  the  facts  tlie 
opinion  of  the  American  (Jonunissioners  of  tlie  Ahi- 
bama  chiinis  in  tlie  case  of  the  Jdiiics  Mauri/  and 
others  may  be  referred  to. 

l)(iiii(if/i's  piniifnri/  or  vimiirfirr  in  rrsju'ii  of  icdntoinicft.s, 
iiKilirr,  or  tfross  Hi'ffliffcnce. 

In  so  far  ns  tlie  opposin;;-  arj^ument  «'laims  damat,fes 
for  acts  of  wantonness,  insult  to  the  tla^j',  an  I  ihe  like, 
(juestions  whully  between  nations,  the  position  seems 
to  l)e  that  in  some  way  an  individual  subject  mav 
succeed,  as  it  were,  to  tlie  usufruct  or  satisfaction  that 
one  nation  ma\'  demand  of  anotiier  for  such  acts,  and 
that  this  vindication  of  national  honor  may  be  trans- 
nnited  into  cash  for  iiis  lienetit.  On  this  propositinn 
enouji'li  has  l»een  said  and  sutlicient  authority  cited. 

Inasnuich,  however,  as  some  weijjht  is  attacheil  to 
the  i)osition  of  the  American  counsel  at  (i»  .cva  in 
respect  of  this  class  of  dama»i'es  (see  th'  Am '.u-au 
position  (pKited  at  pp.  20-21  of  the  British  argument) 
that  point  is  briefly  referred  to. 

'riu;  American  arjiumeiit  stated  the  rule  (»f  damages 
which  applies  in  all  eases  of  malice,  "culpaide  ani- 
mus," nv  i/riiss  nff/lii/fiii'i',  which  is  always  held  to  be 
the  e(iuivalent  of  malice  or  willful  and  wanton  injury. 

On  the  theory  of  the  case  of  the  l'nite(l  States  as 
ori;>inally  ])resented  at  (reiieva,  before  the  withdrawal 
of  their  unlicjuidated  and  unestimateil  national  claims, 
and  on  the  theory  of  their  ri<iht  to  recover  them  with- 
out pre.sentin<;'  any  account  of  them,  the  rule  of  dam- 
aji'es  as  there  ur<>ed  was  the  loj^ical  and  correct  one, 
altln»u<>li  not  allowed  then,  and  never  allowed  in  the 
history  of  the  world  before  <tr  since,  as  between  nation 
and  nation. 

Let  us  see.     That  case  was  shI  (jencris. 


UAMAGEH — PIJNIT(JKV,    ETC. 


127 


Tlic  riiitcil  Sifilcs,  ill  prcst'iitiii;^'  tlic  iiiitioiial  cliiiiiis 
siil)S('»ni('iitly  known  as  "indirect  cliiiiiis"  witlioiit  t'sti- 
iiiiitt's,  MS  it'  ^•(•in^i'  to  a  jury  <tii  n  case  involvin<i'  willful 
and  wanton  tort,  not  iv(|uii'iii<;'  tlic  proof  of  special 
dainaji'es,  proceeded  to  ask  tlie  Trilainal  of  Arl)itratit»n 
"to  estiniate  the  anioiint  which  oii<;lit  to  lie  paid  for 
the  transfer  of  the  American  coniinercial  marine  to  tlio 
British  Ha<;\"     (Papers,  etc.,  V(»l.  I,  j).  1H7,  ton.) 

On  the  same  theory  they  presented  their  claim  for 
"tlu'  ]trolonjiation  of  the  war  and  the  addition  of  a 
jarji'c  Slim  to  the  cost  of  the  war  and  the  suppression 
of  the  reliellioii,"  and  so  on.     (Id.,  p.  iSa,  hottoin.) 

They  did  present,  however,  as  to  claims  for  actual 
losses  of  citizens  of  the  United  States,  specilic  claims 
of  lit|uidated  amount,  aiid  did  i/af  tis/,;  as  to  tliriii.Jhr 
tlir  (lii/t/icdlinit  of  (Uljl  rule  of  d(iiin(i)rs  of  a  iniii'itoijl  or 
liiidictirc  cliiiritctcr  siirli  a.s  arc  ildinicd  lirrc 

Thev  rested  their  claim  for  indirect  damajics  of  an 
imestimateil  character. /'<>• ///r  Xolioii,  upon  the  theory, 
sustained,  as  they  claimed  to  have  demonstrated  by 
the  evidence,  that  the  acts  of  tiie  ('onfederate  cruisers 
were  dlrrif  acts  of  (ireat  ih'itain  of  a  hostile  charac- 
ter, and  to  sustain  that  position  hy  the  record,  inter 
;dia.  they  (pioted  .Mr.  ("ohdeii  and  others  tliroujiliout 
tlieii'  case  to  that  elVect.  To  illustrate  liy  one  instance 
of  many,  to  sustain  tlu*  char;ie  of  ciilpahility  and  lios- 
tilit\.  and  tliei'cfore  what  would  he  calleil  as  lietween 
individuals,  willful  and  malicious  tort,  they  (pioteil 
from  the  speech  of  Mr.  Cohdeii  in  the  House  (»f  Coni- 
nidus,  iis  follows: 

You  liiive  been  carryiiiji  on  liostilitios  from  tlicsc  .sliorea 
iifjainst  tlio  iu'oi)le  of  the  United  States,  and  liave  been 
inllictiiig  an  ainouiit  ot  damage  on  that  country  greater  than 
would  be  iirodiieed  by  many  oi'dinaiy  wars,  etc.  (Id.,  i).  1.S7 
middle.) 

The  facts  of  record,  unhappily,  seemed  to  the  coun- 
sel of  the  United  States,  such,  as  to  reiiuire  them  to 


r 


;&; 


If 


"I  :  "III.jp 


w 


128  DAMAGES — PrNITOUY,    KTC. 

urji't' the  ruli' ot"  (limiiiji'i's  t'roiii  which  the  IJritish  !ir;:u- 
nu'iit  here  (|iiotes;  as,  tor  iiistiince,  they  state  ot"  tiic 
acts  ot"  (treat  Hritaiii  tliat  "her  acts  of  actual  or  ((iii- 
stnict've  comphcity  with  the  Conteth'rates  {iave  to 
the  United  States  the  ri^Iit  of  war  aji'aiiist  her  as  in 
similar  circuiustaiict's  siie  asserted  aji'ainst  the  Xelher- 
lainls."      (Id.,  vol.  3,  -JIS.) 

.Viid  a<;'aiii:  "\o  such  case  on  so  lar^c  a  scale  has 
evi'r  occurred  except  in  the  controversy  l)etwc<ii 
(Jreat  liritaiu  and  France  in  177<i,  and  then  (ircnl 
Hritain  declared  war."     (Itl.,  p.  2 19.) 

The  Mritish  counter  case  truthfully  says,  in  refer- 
ring;' to  the  American  claims  of  this  <lescriptiou: 
"( 'laiuis  like  the  present  have  rarely  l)een  made,  and, 
as  the  IJritisli  (iovernment  thinks,  never  concedeil  or 
recoji'iii/ed."      (id.,  p.  '_M'.>.) 

Such  national  claims,  or  so-called  indirect  claims, 
however.  W(  re,  as  hasbeen  seen.  |)ractically  withdraw  n 
1)\-  the  rnited  Statt'S  on  the  intimation  that  (ireiil 
iiritain  propo.sed  to  withdraw  from  the  arbitration. 

'To  conchnle  this  reference  to  a  most  rejirettidile 
jtart  of  that  controversy,  made  necessary  owin^;'  to 
the  citation  in  the  opposin<i'  arji'ument  here  of  the 
American  position  at  (ieneva  on  the  subject  of  daiii- 
a'i'es,  the  opening' statement  of  the  Uritish  case  before 
that  ti'ibunal  is  cited,  where  it  speaks  of  the  .Vmeri- 
can  case  as  one  which  "imputes  to  the  Uritish  (io\- 
ernment  hostile  motives,"  and  states  that  "no  reply 
to  it  whatever  will  be  otfereil  in  the  counter  case." 
It  ji'oes  on  to  say  that  the  "Uritish  (iovermneiit  dis- 
tiiu'tK'  rel'uses  to  enter  upon  the  discussion  of  these 
charo'es."    (Id.,  v<d.  2.  p.  203.) 

Now.  it  is  clearly  apparent  that  the  measure  of 
damaji'es  lu'ji'ed  at  (Ieneva  had  reference  to  this  fea- 
ture of  that  c!is«'  which  was  "liniinated  by  the  arbi- 
trators and  by  the  consent  of  the  United  States. 

It  is  also  apparent  in  the  whole  recoi'd  of  the  (Jeii- 
eva  Arbitration  that  so  far  as  claims  for  injuries  to 


DAMAOKS — ITNITOKY,    r.l"C. 


12!t 


{'itizciis  iu'f  <'onc(MMic(i  tlic  inilc  iis  to  )i<iiiriiviiti(>ii  <>t 
ilimiiijics  was  lint  I'M'ii  sini-;i('stc(l.  Tluir  rule  liad  no 
more  to  do  with  tliosc  cnscs  tlicr«'  tliaii  it  lias  to  ilo 
with  tlic  cases  licrc. 

Ill  this  case  tli*'  I'liitt'il  States  asserted  jiii-isdietioii 
over  a  piece  oi'  territor\',  and  e\teii(h'd  their  iiiiinici- 
jial  hiws  oNcr  it.  In  imrsuance  of  the  exercise  ot 
tliat  jurisdiction  and  in  tlie  exi'ciition  of  those  laws  the 
( io\erniiieiit  diil  not  discriminate  a;iaiiist  liritish  stili- 
jects  or  the  siilijects  of  any  other  nation  :  hut  the  great- 
est ill  iiiiinher  to  suffer,  and  the  L;r<'iitest  snlVerers  from 
its  action  wen-  those  jiersoiis  who  were  under  the  pro- 
tectioii  of  the  I'liiteil  States  and  were  their  own  citi- 
zens *  The  incidental  and  coiii|iarati\  el\-  insi^nilieiint 
iiijiir\'  to  Ih'itisli  snlijiM'ts  in  this  assertion  <)f  a  ri^^lit 
ol'  so\ei\'ii;nt\'  in  respect  ol  the  seals  in  Uerinu'  Sea 
can  liardh  he  cliaract<-ri/ed  as  "wanton"  under  such 
circumstances. 

It  has  not  Iteeii  considered  a  wanton  and  oth-r.siveact 
l>v(Jreat  Britain,  when  l>y  international  nejiotiatioii 
and  l»\'  treaty,  that  ( ioxcriimeiit  has  treated  the  (pies- 
lion  of  the  jurisdiction  of  the  I'nited  States,  as  one  of 
such  n'l'jive  (loul)t  that  all  other  considerations  should 
lie  postponed  until  it  could  lie  decided;  aiiil  when  liy 
repeated  coii\-eiitioiis,  treating:'  on  the  suhject,  as  a 
matter  of  ri;ilit  or  wronu',  irresjiectixc  of  jiirisdiclioii, 
she  has  admitted  the  rectitude  of  the  iiosition  of  the 
I'liited    States    iis   to    pre\cntinu'   pelagic    sealini;'   in 

Kxi'liiiliiii;  the  tln'ts  ul'  AiiU'riciin  ('ili;'riis  who  tilicvi'il  tlu'  lin\n  liy 
Ui'(^|iiiif;  out  111'  till'  NOiiliiij;  i;iiiiiim1h,  iiiiil  \vori'  tlms  ilr|iriv<Ml  ol  ;ill 
iilMvii  oil  tlu'ir  iin  I'stiiHMit  in  tlir  si'iilinn  ImsiiU'SN,  llic  !iui|i  of  iirtiml 
seizure'',  imt  in  rviili'iicc  liy  (ireat  lirilaiii  shows  a  larjfe  inajoiit.v  to 
liave  lircii  of  AiiH'iiraii  M'hsclH,  who  vislicd  tin'  pi'iialty  of  I  hi'  law.  It 
has  lii'i'ii  assriti'cl  lliat  thr  seal  |ioi(clii'i'*  in  Ihi'  K'usHJati  as  wi'll  as  in  tlir 
Aini'ili'aii  sens  wt'ic  liirj;i'ly  .Vimiirans,  ami  KIplin;;  li'stilirs  as  an 
oliscivrr: 

"  I'.iiKlish  tlii'y  lie  ami  .laiiaiicr 

i'liat  li.'iii^  on  thr  Itrowii  I'cjr's  llaiiU; 

Ami  sonii'  III'  Si  lit.  lint  thi'  most,  (ioii  wot, 

,\ml  till'  liigncst  thii'vi's  111-  ^anU." 

II  s 17 


130  DAMAGES — PUNITORY,    ETC. 

Herinji'  Sea  and  has  joinecl  with  that  Goveniment  in 
tlie  eti'ort  to  })revont  it. 

Hut  apart  even  from  the  »|iiestion  of  wliat  may  he 
called  al)stra"t  moral  ri^ht,  whieh  excludes  in  its 
artirmation  the  idea  of  wantonness,  in  respect  of  '^'  • 
charge  of  wantonness  and  evil  intent  to  injure  sui»- 
jects  of  (treat  liritain,  and  in  respect  of  the  charjie  of 
affronting-  the  Hag  and  of  invading  the  deck  under  it. 
these  ca.ses  are  in  precision  at  every  point,  in  counter- 
part of  the  case  of  Tlic  WdsliiiH/fni/,  appearing  in  the 
pi'oceedings  of  the  Mixed  ( 'onnnission  under  the  Con- 
vention of  1S53.  There  was  the  assertion  l)y  (treat 
Ih'itain  of  exclusive  jiu'isdiction  over  the  Hay  of 
Fundy.  which  is  and  was  held  to  he  a  pju't  of  the  high 
seas.  There  a  Hritish  cruiser  seizecl  an  .Vmerican 
ship,  of  .\merican  registry.  an<l  flying  the  .Vui'-rican 
Hag,  more  than  10  miles  from  any  coast;  there  tlie 
American  ship  was  taken  before  an  admiralty  court 
and  condemned,  and  Itv  these  acts  lost  to  her  owner. 
Ihit  there,  instead  of  a  l)oard  of  Mrl)itration,  a  Hritish 
umpire  decided  against  (Jreat  Hritain.  'There  was 
no  charge  of  waiitonness  or  malice  on  tlu'  part  of  the 
Tnited  States,  hut  it  was  treatecl  as  the  plain,  every- 
day case  of  an  act  committe(l  umler  claim  or  color 
of  right — failing  of  sanction  l>v  judicial  judgment — 
ami  was  then  treated  as  a  simple  tort. 

In  these  conditions  it  is  not  seen  how  tlie  illustration 
cited  against  the  I'uittMl  States  from  .Mayne  applies, 
where  lie  sa\s: 


If  any  other  rtih' exist  «■(!  [ilie  rule  as  to  punitory  <laiiin>;es  in 
citcuinstances  of  aji;;ravatioii|  a  man  of  hujiv  fortune  nii^ilit 
by  a  ccrfain  outlay  purcluise  the  rljrlit  of  heiuKa  i)ulilic  tor- 
mentor, lie  uiipht  copy  the  exami)le  of  the  youn}>'  Iiomau 
uohle  mentioned  by  (iibbon  who  used  to  run  aloufi'  the  Forum 
striking  everyone  he  met  ui»on  the  cheek,  while  a  shivu  fol- 
lowed witii  a  piu'se  making  a  lejiai  tender  of  the  statutory 
shilling,     i  Itrit.  Argument,  p.  -I.) 


DAMAOKS — ITNITOin,    KTC. 


131 


'riic  rule  in  tliis  case  is,  as  tlic  sjiiiii'  iiiitlidr  statos     ^Voodv 

,  .         .     ,„     .     ,  Xlaviu'    oil 

It,  as  ut  a  case  (it  oiilv  "raiicu'd    njihts,  thus:  Hiiiim^ics,  1st 

.\m.Kil.,tVoni 
III  jieiieral.  however,  injuries  to  pioiterty,  where  iinaccoin  :<i<lKii|;.K<l,, 
paaietl  t»y  iiialice,  and  esiieeially  wlicre  they  tiiice  iihiee  iintlcr       !'•  ''''• 
K  I'liHcied  rifilit.  are  only  visited  witii  damages  ]>i'o]iortionate 
to  tiie  aetaal  pecuniary  loss  sustained. 

Xt'itlicr  is  it  seen  liow  the  rules  apjily,  citt'tl  tVoni 
Siitlu'rlaiiil  on  1  )aiiiaL;('s.  that  tlic  niotiv*-  witli  wliicli 
a  WTdii;^'  is  (Idiic  allccts  tlic  rule  hy  which  coiiipcnsa- 
tioii  is  lucasiircd.  or,  as  the  same  author  is  (Hiote<l,  that 
"Where  there  is  a  iVaiid  or  other  intentional  wron^' 
there  is  not  the  same  strictness  to  excludeiincertain  and 
remote  da mao'cs,"  have  anythiiii:'  to  dowitli  this  case. 

The  rule  actually  apiilyinj:'  here  is  stated  hy  that 
author  as  tollows  (\'ol.  I,  17;5): 

Tlie  value  of  the  juoperty  constitutes  tlie  measure  or  an 
element  of  damajjes  in  a  fjreat  variety  of  eases,  both  of  tort 
and  contract:  and  where  there  are  no  such  afif-ravations  as 
call  for  or  Justify  exemplary  damag'es  in  actions  in  whiith 
sucii  damajjes  are  recoverable,  the  value  is  ascertained  and 
adopted  as  the  measure  of  compensation  for  beiii};  deprived 
of  the  i)roperty  the  same  in  actions  effort  as  in  actions  upon 
contract.  In  both  cases  the  value  is  the  lejial  and  lixed 
measure  of  damaji'es.  and  )iot  (liKcritioiinrji  ivitli  tlw  jnrji. 

The  same  rule  will  l>e  t'oiiiid  in  Sedji'wick:  and  his 
statement,  as  (|Uoted  in  the  o|t|iosiim-  lirief.  as  to  cer- 
taint\'  in  the  allowance  of  jirotits,  "wlu-n  not  «'xcliiiled 
as  unnatural  or  remote,  heiiiji'  wholh'  a  (|Uestion  of 
the  certainty  of  proof,"  refers,  of  course,  to  that  "cer- 
taintv,"  in  the  lef^al  sense  of  the  term,  as  defined  hv 
the  cases  which  have  lu'eii  alreadv  exliaustivelv 
examined. 

Uut  i>asl   piolits  are  in  no  case  to  be  taken  as  a  jiuide  to 
what  inav  afteiwards  be  made.    (IMasterton  r.  Mt.  Vernon.    • 
IS  N.  V.,".$',»l.) 

'I'iie  citations  from  Sednwick  and  Sutherland,  of 
which  the  case  of  .\Uison  /■.  Chandler  (1  1  Mich.,  ')A2) 
is  taken  as  the  te.M.  appeariuji'  on  paiics  l'S.  ■_>!»,  and 


I 
J 


w 


i'(i 


'tr^™™ 


132  DAMAGES — PlMTORy,    ETC. 

30  (»t  tile  IJritisli  iirf^iiiueiit,  Jirc  aiiotluT  iiistiuicc  ot 
I'Xtroim'ly  iiijti)|)rtn»rijite  iipijliciitioii. 

Ill  tilt'  fiist^  of  Allison  r.  ( "liiiiidliT,  it"  i'Xfiiiiiiu'(l, 
will  lu*  tuuiul  the  same  hroad  <listiiictioii,  as  in  tlio 
text  writers  citetl. 

Tims  in  that  ease  itself: 

If  a  trespass  was  coiniiiitted  while  the  detenilant  was  tictiii  j; 
ill  f>'0(i(l  I'aith  and  uiidor  an  honest  belief  that  he  had  a  legal 
right  to  do  tlie  act,  the  plaintitV  is  entitled  to  lecover  only 
actual  damages  and  not  daiiiages  of  a  iiunitory  character. 

The  action  was  one  of  trespass  to  realty,  ami  the 
acts  of  the  defeiidant  were  of  a  jieciiliarly  Hajirant  and 
oiitrajieous  nature.  Allison  lia<l  an  old-estahlislied 
husiiiess,  and  ( "handler,  waiitiiiji'  the  property,  without 
any  color  of  riiilit  whatever,  as  was  foinid,  practically 
tore  (hiwn  the  huildino-  over  his  head  and  ruined  hi> 
stock  in  trade. 

It  is  usually  spoken  of  throujih  the  hooks  and 
reports  of  cases  as  the  leadinu'  example  of  a  "willful, 
wanton,  reckless,  and  nialicioiis  trespass." 

And  so  the  .MichiiL','an  cases  follow  it,  i»ut  distinjiuish 
cases  like  the  one  here  considered.  (Ilvatt  /".  Admus, 
l(i  Mich.,  ISO;  liatterson  r.  Chica-.-o,  4!)  Mich,  184: 
Kreiter  r.  Nichols,  2S  Mich..  411(1) 

And,  furthermore,  it  is  held  in  the  supreme  court 
of  Michiji'an — where  Allison  /•.  Chandler  still  holds 
its  place — that  the  "wroiiji'  must  he  one  wilfulh'  done 
till'  |»laiiititf,  and  Mot  a  wron;^'  iloiie  without  ri'fereiice 
to  him."  (Detroit  /•.  McArthur,  Hi  Mich.,  447.  And 
see  '2X  .Mich,,  supra;  (Janslev  /•.  Perkins.  ,'50  .Mich.. 
4il-_':   Teiihopeii  r.  Walker.  W  .Mich.,  '>:U\.) 

The  case  is  like  that  of  rempertou  r.  Kussel — 
malicious  injury  to  trade — (ISK,'},  I  {}.  IV,  71."t),  or 
if  applied  to  marine  torts,  would  he  like  the  cases  of 
malicious  arrest  of  a  ship,  if  it  was  the  "result  of  had 
faith  or  rrti-isn  neiiliL;eiice."  (See  cases  cited,  L.  1{ 
Dio'.,  lS!il-lsil,-),  column  803.) 


EXTRAVAGANT    CLAIMS. 

TIr'  (iiiotiitious  troiu  I'otliier,  l^Jiiirciit,  imd  tVoni 
Dl'HIoIoiiiIh'  ivciuire  hut  two  (•(minit'iiTs: 

(1)  Tlicse  iirc  not  cMSfs  df  tViuul:   and 

(2)  It  ni't'd  liiinlK-  be  said  that  ilic  ruk'  (if  daiii- 
au'cs  uii(k*r  the  ("ivil  Law  diHers  from  that  of  the 
coiiinioii  law,  and  lias  no  apjilication  Iumt:  neither 
has  any  code  which  has  the  Civil  i^aw  for  a  parent. 

LEGITIMATE  COMPENSATION  AND  HEREIN  OF 
EXTRAVAGANT  CLAIMS. 

Hereafter,  under  the  proper  heads,  the  testimony 
of  the  several  owners  of  the  respective  vessels  and  the 
other  evidence  will  lie  analyzed,  so  that  what  may  lie 
deemed  the  hi<:hest  limit  of  fair  valuations  and  fair 
compensatitin  for  injuries  may  lie  arri\-e(l  at  from  the 
testimony. 

'['he  tendencN'  to  preposterous  exaji,t>eration  by 
claimants  aj:ainst  nations,  and  I'specially  under  ( 'laims 
Commissions,  has  been  universally  observed,  and  is 
authoritativelv  set  d<iwn  in  the  bociks  as  a  matter  to 
lie  treated  as  "a  ji'eneral  rule  in  arrivinj^-  at  valuations. 

Cnder  the  British  and  American  Claims  Conven- 
tion of  1S71,  ,^5,0()()  printed  pa;i('s  (74  octavo  vol- 
umes of  SOO  pa;i'es  each)  of  testimony  were  taken,  and 
the  anurenate  of  claims  presented  liv  Hritish  subjects 
a.uain'^'t"  the  I'nit.'d  States  was  s<J6,()0(),()()().  'The 
total  awards  of  the  Coumiissidu  on  those  claims  ajiure- 
Li:ite<l  >;l/,)2!»,sr.l.  The  claim  of  American  citizens 
presented  to  that  C'onmiission  aiiainst  (Ireat  liritain 
;inoT('o-;ited  >^  1,01)0,000,  of  which  noiu- were  allowed. 
fi?!'it.  .Vuent's  Hep.,  p.  "i,  App.  1(14:  and  see  Am. 
.\,uent"s  ivep.,  vol.  (!,  Papers  Treaty  of  Wash.,  pp.  4,S.) 

I'nder  the  Convention  of  February  ll',  1S71,  bi- 
tween  the  Cnited  States  and  Spain,  upwards  of  >^;iO,- 
OOO.OOO  of  claims  were   presi'nte(l    and    considered. 


133 


and  o 


ftl 


US  amoui 


It  th 


lere  was  alloweil  souk 


■thii 


lU'  o\e 


^1,0(10,000.      (Am.   Wep..  -'Opinions  and    Decisions 


Ai 


W' 


iiiem 


lix.) 


134 


KXrUAVAGANT    CLAIMS. 


Hcforc  tlic  Aiiici'Icaii  ainl  IJritisIi  Coiiiniissidii  ot 
18;");}  cliuiiis  ii;i'<iT('f>utiii<:'  some  Diillioiis  dt'  ddllms 
were  prt'sciitcd  hy  ciU-li  ('(iiiutry  JiiiJiiiist  the  dtluT, 
.111(1  tlic  total  award  on  tlit'in  was,  on  account  ot 
liritisli  siihjccts,  >;l*77,1(>2.(SS,  and  on  accoun;  ot 
Anicrican  citizens.  >i.'5".^!»,7iU.l(l.  (Am.  Aiivnt's  lu- 
])ort — Iiitrodtictioii  ami  Recapitulation.) 

I'lidfr  the  Claims  ( "onveiitioii  hetweeii  tlie  rnited 
States  and  Mexico  ot"  .Inly  4,  18(>S,  the  claims  pre- 
sented a<i;are<iated  >i47<M':>(;,(;i8.i;{.  and  the  Com- 
missioners allowed  on  them  the  sum  ot  ^ii,!)7r),ri;{.71t.* 
Urit.aiuU'.ir.       jn  April,   1S71.    the    Mdiitiiti,   an    American    shin. 

.Stiito     I'll-  '  ,  ,      ,         .         Ill        I  •    •.      1    o  '  ,■ 

piis.  iM74-Avas  captured  and  detanied   l)\   the  I  nited  htates  ot 
"°'.L"'; ''"■^-"h"ii''iii-      I'he  I'nited  States  invt'erred  a  claim  for 
damages. 

The  matter  was  referred  to  arltitrators.  The  amount 
of  the  claim  presented  was  >>ll4,0()(t.  Tlie  arl)itrators 
disa^irei'd,  and  the  matter  was  then  referre<l  to  the 
Uritisli  minister  as  umpire.  The  report  on  the  tpies- 
tioii  of  comju'iisation  made  hy  the  American  arhitrator 
was  affirmed  hy  the  umpire,  cuttin^i'  the  comjMMisatioii 
down  to  ^y;{,0("l(t. 

On  the  claims  for  Uritisli  ships  destroy«'d  in  the 
Seine  hy  i'russia,  Great  liritain  referred  the  \alua- 
tions  to  the  lords  of  the  priv\-  council  of  trade  foi' 
iiivesti^'atioii  and  audit.  The  result  was  rejiorted  1)\ 
the  hoard  of  trade,  who,  after  investijiation,  said  of 
the  claims  preferred  Ity  the  respective  owners  for  the 
losses  of  their  vessels  that  tiie\  were  "far  in  excess 
of  the  most  extrava;;ant  valuation  tiiat  could  l)e  put 
upon  them." 


'In  1H80  ft  Uritisli  siiliitct  in  (Jreece  wiis  injiiicil,  liis  I'aiiiil.v  luiiti  ii, 
iind  "liis  wIkiIp  iiropert.v  ilostiojed."  Ilis  claim  mi  the  (IrccU  (invcrii- 
nn'nt,  wliiili  (iri'iit  Uritain  ton!;  ii]),  wiis  inr  l.'L'l,L'!t."i  Is. 4(1.  (in':il 
Hritiiin's  nii'tliinl  of  inlt'ivention  at  liist  was  liv  niiikinj;  t'c|irisiils. 
(irieci?  ]ii'otrst<'(l,  and  Kiissia  Ktiiionstrati'd.  Tlirmiuli  the  iiu'diatioii  (it 
I'ranie  the  cdiitiovorNy  was  iidjnsted  liy  ii'/VniiiK  it  to  iMHiiinissidiiors, 
who,  on  full  invisti;;ation  and  ajipraiscnuMit  of  roni]itMisation.  awnrdi'd 
tlie  llntisli  snii.jeet  Cl.Ml.     (lialvi'i'i*  Hallerk.  \'iil.  I,  p.  47:^.  note.) 


EXTKAVAGANT   CLAIMS. 


135 


And  jigiiin:  "Those  estiinates  air  extravagjinf  and 
iihsunl  ill  the  oxtrt'iiio." 

Tlio  Ht'jiistrai-  of  the  (\)iirt  of  Admiralty  also  made 
II  report,  in  which  lie  said: 

In  tlie  present  case  tlie  claims  ineferred  are  so  outraseous 
that  I  should  be  inclined  to  adopt  the  rule  whicii  1  always 
loUow  in  court,  namely,  never  to  allow  the  claimant  his  costs 
wlien  he  puts  forward  a  very  extravagant  claim,  as  has  been 
(lone  in  these  cases. 

It  is  of  interest  to  note  the  comparative  valuations 
put  upon  ships  hy  their  owners,  and  by  the  Jioard  of 
Tiade  and  Admiralty  for  compensation,  as  follows: 


Slii|w. 


Am: 


'I'niis. 


Kcprirt  of 
OWIHTs'  illlllHItll    I(( 

i'iitini.         hi>  paid  fui- 
8lii|>. 


Alice ■>() 

Ann 10 

.lani'  Tindiill Jl 

.li'ssiiniine 1(1 

McLaren  l<) 

Sally  (iale 11 

Svlpli 53 


mo 

117 

l.-|!l 
211 
ITS 

i;is 


f 

2,  KMI 
I.S2I 
l.NdO 

-',  r.()(t 

LMlOO 
2,  SlIO 
2, (K.O 


7(10  Br  it.     and 

1,000  l"»i'-   State 

7(10  I'apers, 

000  Vol.  61,  pp. 

1,  100  595-5it7. 

9.->0 

.-.-)() 


15, 32 1 


,900 


i 


The  aj>'<>Te^iite  of  claims  presented  was  20,-_>7O 
poimds;  the  total  allowed  on  the  able  report  of  the 
registrar  of  tlie  Court  of  Admiralty  was  (I.SDil  pounds. 

A  similar  rejHU-t  by  the  same  authorities  was  made 
(111  the  American  claims  and  tiled  as  a  part  of  the 
ISritisli  case  before  the  arbitrators  at  (Jeiieva,  wherein 
tlicv  say: 

It  will  at  once  be  admitted  by  those  who  are  at  all  familiar  \ol.2,  Papers 
witii  the  practice  of  tlie  courts  in  maritime  ca.ses  that  it  is  ™ii'ting  to 
iiiilKissible  to  place  much  reliance  on  the  opinion  or  evidence  Jy^'^}^-  "' 
of  shipowners  or  nu'icliaiits  as  to  the  value  of  property  ton!*p!"s3! 
wiiicii  they  are  scckins  to  recover.  Sliipowneis  are  in  the 
hiibit  ol  tbundiiig  tbcir  estimate  not  on  what  wouUl  be  the 
iiiarki't  iirice  of  the  vessel  at  the  time  of  her  loss,  but  on 


'  A 


fJ.-Tr.-^ 


13(J 


KXTK.VVAGAXT    CLAIMS. 


the  <irij;iiiiil  I'ost  piicf,  and  ol'teii  take  into  account  the 
amounts  wliicli  they  liavc  (-xpcnded  at  ditleient  times  with 
out  inakiu};  any  proper  deductions  for  tlie  wear  and  tear  iunl 
damajie  wliicli  lias  been  sustained.  Mercliants  are  inclincil 
to  estimate  the  vahu'  of  tlieir  jroods  l)y  tiie  i)rolits  wiiicli 
they  liad  hoped  to  reahze,  without  miikinff  any  aUowaiiii' 
fortlu'  risk  ot'tlie  nuirket  price  faliinf;'  or  other  coutiufjencics 
on  wiiich  tliose  prolits  so  olten  dejM'nd. 

Cliicf  .Iiisticc  ('ocklnirii,  in  his  u|tiiii(»ii  on  the 
chiiiiis.  sjiys: 

The  true  character  ol' these  ehdnis  will  be  seen  by  eonijiar- 
inj;'  the  amount  of  the  demands  now  made  for  tiie  (ji'ospective 
earninji's  of  the  whalers  with  the  orijiinal  list  of  elaiuis  for 
warded  by  .Mr.  Seward  to  .Mr.  Adams  in  KSiiO  and  eonumiiii 
cated  by  the  latter  to  the  British  (lovernment.  It  tinl^ 
appears  that  these  claims  have,  without  any  assignable  rcii 
son,  increased  to  such  an  extent  that  they  are  now  some 
tinufs  double,  sunietimes  treble,  and  sometimes  even  ninrc 
than  live  times  what  they  were  in  the  (ni};inal  list. 

Tiie  followinj;'  table  exhibits  some  of  the  nu)re  strikinj;' 
eases. 

*  *  #  #  * 

.Manyotlier  similar  instances  of  extraordinary  an<l  arbi- 
trary increase  mi<>iit  be  cited.  Init  the  above  will  sullicc  to 
show  (what,  iiuleed.  a  nu're  conipari.s(ni  of  the  claims  tliciii- 
selves  with  the  value  aiul  toninij^e  of  the  vessels  but  tim 
clearly  proves)  that  these  demands  are  of  a  most  extortioniilc 
character. 


Vol.  1.  1' 

pers.  Ire 
of  Wa.sh. 

5:)8-.'>n. 


I  i)elieve  that  the  estinmte  of  >*\W)  |»er  ton  for  ship  and 
Outlit  (whaling  ship),  jiropo.sed  in  the  iiritish  Iteports.  is  sncli 
as  would   l)e  accepted  as  adecpiate  by  i)ersons  ac<inainlc(l 
with  the  eliaraeter  ami  value  of  whalinji'  vessels. 

Usiiio-  these  few  of  ninny  instiinces  tor  ilhistratinii, 
iittentidii  is  called  to  the  exolntion  of  the  cliiinis  here 
from  the  tinu-  the\'  lirst  apiiean-d  ;ni(l  were  first  pie- 
st'iited  hv  (ireat  Britain  iit  I'ai-is  until  they  iipptin' 
ji<'ain  in  talinlated  form  in  the  aruiinient  here.  This 
tal)le  does  not  inclmle  the  costs  in  the  Saywunl  ciisc 
(»r  "Additional  clainis."  Itiit  simply  the  claims  l)y  tlie 
owners  ^^i'  the  ships,  showini;'  the  siune  description  nt' 


""^m 


KXTRAVAGANT  CI-AIMS. 

clfiiiuti  iis  tlii-y  linvf  sfcii  tin-  lijilit  iit  three  dirt'erent 
tiint'fs. 


187 


rhihii  ii.s  riiiiiii  MS  <!liiiiii  1I.H       "IiitereHt 

VoNHbU.  pri'81'iitcil  nt  t>i'i''''i-Ml<'<l  iit  now               tn  lie 

I'lirls.  Vii'tni'ia.  iiri'Si'iiti'd.       ailili'cl." 

Carolcnii +1.'9.  :il;t.(»l  .t;t."i.  Odd.  (M)  +38,  dX!l.  2.") 

Tlioriitoii :):f,  ;ti7.  <;.")  H7,  (MHi.dd  cmiw.  d4 

OinMird l.'!l,  7(i!t.  71  lil.ddd.Od  15.  ThO.  10 

Kiivniirite 7,0(K).dd  7.000.00  (i,  liO:.'.  (Kl 

W.  I'.  Siiywiiril   ;il.O."i,"i.  00  I  ;rs(MIO.0d  17,  OSI.Oli 

(iiiice 10.  14L'.  57  yj.  d(Ml.  00  til.  l'.»<.  25 

Aniiii  lirck :id.K(i;t.0l  Il!,dd0.(ld  51.,W0.dS 

I)()lpliiii l;i.  s;)(i.  ,50  5.5,0lKl.dd  (18.Mi»7.71 

Alfieil  Adams 2d,  IH.'f.Od  1.'.5.  Odd.  00  '_'().71(l.0d 

Ada UK.  ,52S.OO  12,0110.00  (il.d(«.d7 

Triiimph  (littli') ld,2.50.(M)  ll.ddd.lKI  5.  :i25. 5d 

.luanita Il,fl!i5.0d  IK.ddd.dd  ;!2.1Hl.dO 

rathlindiT,  IHWt L'li,  705.  dd  :  SO,  Odd.  dO  lil.  (il'-J.  00 

Tiininpli  (l)ij;) I'J.  (i7t.dO  ,  L'5.  (I(K).  dd  Id.  i)5d.  (Id 

IllacU  Diaiiioiitl,  IXSil 17.  1X5.00  2:i.ddd.dd  ll,!ldl.Od 

l.il.v 17,170.00  22,(10(1.011  :i|.57l.(Ml 

Ariel !l,  IIW.OO  12.000.00  20,(1(11.00 

Kate  11.210.00  M.dllO.Od  22.;iKI.(ld 

Minnie 10.  100.  dd  '  22.  Odd.  00  10.  107.  dd 

I'Mtliliiidcr,  IKKl 2.  Odd.  dd  i     2.000.00  ;i,7(KI.(KI 


111  (il)serviiip'  this  tiihle  iiiid  the  iimoiints  in  the 
(•(ihiiini  of  cliiiius  iis  presented  iit  ^'i(•t(ll•iJl,  it  should 
he  reiiiiirked  in  |)iissiii<>'  that  if  tlie  <>-eueral  phiii  of 
presentation  as  pioneered  hy  tlie  alh-ji'ed  owner,  ^Iiiii- 
sie,  in  tlie  lon<i'  heariiiu'  in  the  case  of  the  CarolciKi,  had 
not  miscarried,  within  tlie  oliservation  of  tliose  who 
were  to  come  after,  no  one  would  venture  to  estimate 
how  far  the  preposterous  exagji'eratioii  would  have 
-idue, 

K(|uipnient  for  Imsiness  in  General,  for  tisliinji'  voy- 
aji'es  on  the  coast  for  other  seasons,  for  supplies  tor 
other  sliij)s,  stocks  of  ji'oods  for  Indian  tradiiij^'  stores, 
and  so  on,  mi<>]it  have  been  added  t(»  the  enormous 


amounts  that  are  i 


low  suown 


and 


as  111 


tl 


le  case  o 


the  Cdioh'iKi,  vouchers  niiji'ht  have  iieen  presented  of 
the  most  orderly,  most  regular,  and  correct  kind   to 


convince  the  Commissioners  that  all  tl 


lese  were  usee 


It  s- 


18 


138  DAMAGES — "I'EKSONAL   CLAIMS." 

ill  ii  im»loii<iV(l  si'iison  of  two  iiioiitlis  in  Mcriii;;'  Sen, 
for  which  tlic  riiitfil  States  shouhl  \y.\y.  As  it  is, 
the  ri'sults  of  that  orij>iiial  phui,  in  the  amounts  of 
tiios*'  hiliorionsly  lioiicst  voui'hrrs  for  supplies  and 
ciiuipiiR'Hts,  arc  not  in  the  case,  and  even  the  first 
fruits  of  it,  so  carefulh-  preserved  and  so  faithfiillv 
sworn  to  l)y  Miinsie,  the  ('(ualciid  vouchers,  are  nut 
I )roiijilit  forward,  (»r  their  amounts  h»n;;'er  iiudiKh'd  in 
the  al)ove  "  vahiations." 

Tlie  Commissioners  have  seen  tlie  (daimants  iit 
\'ictoria  and  liave  o!)served  their  methods  of  ]»repar- 
in<>'  and  ]»resentiiiji'  their  evidence.  As  a  tdass,  thev 
were  certainly  no  better  tiian  those  referred  to  in  the 
citations  lieretofore  (pioted,  as  iK'iii}^'  unrehable  assess- 
ors of  tlieir  own  vahies  and  (hima<ies. 

PERSONAL     DAMAGES     FOR     FALSE     IMPRISONMENT 
AND    PAIN    AND    SUFFBRINO. 

As   to  these,  a  table  is  submitted*  showin<i'  their 
l^rowth    in    amount.     The   testimoiiv   in    support   of 
them  is  liereinafter  analyzeil  under  the  ])roper  heads. 
The  Mar<>'oticIi  story,  which  seems  still  to  be  fiiveii 
credence  in  the  IJritish  ar^iument,  is  a  story  of  hard- 
ship, l)ut  it  is  not  ludieved,  after  the  investijiation  at 
Victoria,  that  the  Commissioners  will  <>ive  it  any  credit, 
p.  ,")9,  ached-       The  "surt"erinj''s  and  losses,  navi<;'atin<i' four  vessels 
uieonirit- (,.,„„  Cnalaska   to  Sitka,"  of  Captain  Warren,  .lohii 
iit  I'aris.     liedly,   (  aptain    |-erey,   A.    n.    Lam<i',    l.,oiiis   ( ilseii, 
^lichael    Keefe,  and  ('aptain   Petit,   of   the  Warreii- 
( 'ooper  fleet,  mijiht  possibly  be  considered  irrespec- 
tive of  the  actual  American  ownersliij)  of  the  vessels 
on  which  they  sailed,  with  the  exce|)tioii  of  Warren 
and  Laiii;^',  who  had  full  knowledji'e  that  the  national 
character  of  the  ships  on  whicditliey  sailed  was  not  Brit- 
ish, but  American.      In  any  case,  the  amounts  char<>-e(l 
for  the  hardships  iill  appear  by  the  table  presented. 

■  Infill,  p.  .T!.". 


i^'  i 


l,AMA<ii;8 — "  I'KUSONAl.    CLAIMS. 

Wlmt  these  sutl'eriiii;s  iiinl  losses  were  did  not 
;i|ili(jir  iit  tile  lieiiriiiji'  lit  N'ietoriii,  l>iit  it  di<l  iipiieiir 
;it  tlijit  lie!iriii<>',  tor  the  lirst  time,  thiit  Wiirreii.  IVtit, 
iiiid  Keel'e  were  occiipied  diiriiiy  their  "deUiition"  in 
Aliiskii  lit  II  very  hijili  rnte  of  coniiiensntion,  |»iiid  In 
the  iinthorities  of  the  L'nited  States  ( Jovennuent,  for 
their  services  luider  volinitiirv  conf:    <u 

It  did  fipiieiir  thiit  while  ('iiiitniii  IVtit  iind  Keefe 
were  otV  on  ii  voyn^c  in  tliiit  hehiilf,  all  the  others 
imnied,  who  were  not  sulVerin<i'  like  themselves  and 
('ii|itiiin  \\'iirren,  hiid  de|iiii'ted  for  Iioiih  . 

Anion;;'  the  prisoners  of  ISSli,  aside  from  AUir^dtich, 
are  ( Jiittoinsen,  .Monroe,  Norman,  ( )^livie.  and  JMiick, 
all  of  the  (hiintnl,  rimnitnii,  and  the  ('(imlfiiii.  Setting' 
.Mar^otieh  aside,  the  tale  of  suffering'  of  these  men  is 
relate(l  hy  the  witness  Dillon,  who,  as  it  turned  out 
on  cross-i-xamination,  actually  remained  iiliout  the 
jail,  not  as  a  prisoner,  hut  as  a  deputy  of  the  sheriff, 
and  remained  hecause  he  ;^(>t  better  wa;:'es  in  that 
employment  than  in  following'  the  sea.  There  is  no 
claim  for  wa^cs  in  thesi'  personal  cl  iins,  and  not  a 
word  of  testimony  except  that  of  Mar;;dtich  and  the 
witness  just  mentioned  as  to  any  actual  damage 
sutfered. 

The  testimony  of  (,'aptiiin  liaynor  disposes  of  the 
O^livie  claim,  and  it  is  not  thought  necessary  to 
ar^ue  the  (|Uestion  as  to  whether  the  item  which  .Mr. 
.Muusie  ('harries  for  cash  lost  throu;;h  him  is  a  j)ro|K'r 
char^ie  against  the  Tniteil  States, 

'I'he  jiersonal  claims  are  of  a  character  in  any  case 
which  have  never  heen  allowetl  in  a  case  of  unlawful 
capture  at  sea.  'i'hey  are  claims  for  jiunitory  dam- 
ages, which,  as  we  have  seen,  can  not  furnish  the 
rule  of  dania;;es  here. 

It  appears  throu^ih  all  prior  ( "ommissions,  and 
iiotahly  under  the  (."ommission  of  1S71,  that  all  ]ier- 
sonal  claims  of  masters  or  memhers  of  crews  of  ships 


18!) 


140  DAMAUKS — •'rilHSONAL   CLAIMS." 

tor  iiii|iris(iiiiiu'iit,  lmnlslii|»s,  ur  dtlicrw  isc,  were  pfc- 
sfiitcil  sc|)iiriit('ly  iVom  tlic  ships,  hy  iii(li\  idiKils,  lic- 
(•iiiisf  ii  liiidiii;^'  wiis  n'(|iiinMl  on  "ciicli"  cliiliii.  .is  in 
lliis  ciisc.  It  follows,  on  tliis  ground  iiiso,  tlint  im 
cliiiiiis  cini  lie  cntcrtiiiiicil  tliiit  iirc  not  scIumIhIciI. 

It  Wiis  tlic  iict  of  ii  ( )o\  ('rnincnl  mulcr  coloi-  of  rii^ht 
innl  cliiini  of  jnrisdiction.  Aitliouiiii  the  persons  un 
the  ciiiitni'fd  \('ss('is  were  |H'ii('ticidiy  ini|ii-isonci|  in 
tlic  AliiliKiiiii  ciiscs,  IK)  siicli  cliiinis  were  cN ni  |ircscntcd. 

Tlic  cMsc  ot  tlic  Miiiilijii,  siijirn,  Wiis  |iiirticnl;irl\ 
oiitriiui'oiis  iis  jiiiiiinst  the  slii])  and  those  upon  her. 
In  tliiit  .case  similMr  cliiinis  wci'e  presented  liy  the 
I'nitcd  Stiites  in  lielndf  of  the  otiiccrs  mid  crew,  iiiid 
this  is  whiit  the  Ih'itisli  minister,  iictiiiii'  iis  umpire, 
decided  on  such  (diiinis: 

lint  tlio  iiiMK'i'.si;iiM'(l,  wliilst  (lecitliiii;  mi  the  liiiliility  ct 
tlic  owners,  docs  not  si'o  miy  nt't'ossity  tor  indtMiiiiityiiiu- 
eitlicr  Mr.  .loliii  Sclinilu'r,  tlu'  ciiiitiiiii,  tlie  I'liH'iiu'cr,  or  the 
|)ctty  olli(U'rs  iind  ercw  ol'  the  Mciifijo.  No  pei'somil  injury 
seems  to  IniNc  licen  sutrercil  hy  iiny  of  tliese  persons,  iiinl  tlie 
incoiivenieiict'  tlicy  oxperii'iiccd  .ippeiirs  to  liave  liccn  siiiiill. 
Ill  the  fiise  of  tht'  uH'km'I'.s  anil  cicw  piohiihly  tlu'ie  was  none 
at  iill.  Tlie  waKi*"*  ot  all  of  these  latter  have  doubtless  been 
paid  hy  the  owners,  so  tlnit  it  really  iiiiist  have  been  a  iiiiitter 
of  iiidiH'erence  to  them  w  hetlier  tliey  weic  sailin,ii  under  the 
orders  of  Captiiin  Hamiders  or  ol'  .Sefior  llenera. 

As  to  .Mr.  .lohii  .Sehniber.  the  iindt'isi<;iied  eaii  scarcely 
consider  iis  a  ca.se  ot'  I'alse  inii)risonment  his  retention  on 
board  of  his  own  \e.ssel.  'i'hat  lu;  wiisnot  ii  I'rce  mtni  is  true, 
iind  tliiit  he  siiHered  some  inconvenience  and  possibly  some 
loss  of  business  by  the  act  of  which  he  complains  is  prohahiy 
the  case. 

It  is  also  i)()ssible  that  a  court  of  law  mifiht  considei'  him 
entitled  to  iiersoiiiil  daiiiiiges,  but  the  undersiKiitMl  believes 
thiit  ii  'I'ribnnal  such  as  this  is  may  lawfully  e\crcl.se  consid- 
erable discretion  of  its  own,  and  decide  rather  on  broad  {{en- 
eral  piiiicijiles  than  on  a  strict  interpretation  of  written  law. 
Such  bein^i'  lii.s  opinion,  he  coiii'iirs  iritli  the  Ayhilnilor  of  *lif 
f'nitid  States  in  strikin;;'  out  of  the  accounts  presented  by 
that  (ioveniment  the  chiinis  for  iiersonal  diunaj;es  of  all  the 
parties  (!oiiceriied. 


KAMAflKS — SKAL    SKIN    VAhlKS. 

CLAIMS  FOR  LEOAL  SERVICES. 

<  >ii  tln'  tcstiiiiuiiy  fit  N'irtiiriii.  it  is  iuinlly  tliiiii;ilit 
|inssil)l('  tlifit  tlif'sc  clijirtii's  will  Itc  ciitcrtiiiiiLMl,  in  sutiir 
;is  tlicy  rt'liitf  to  the  |»r<'|»iir!itiuii  ut'  cliiims  to  Ix-  prc- 
>ciit('(l  ii^^'fiiiist  till'  ( lo\('niiii('iit,  jiikI  iiorliiiiji' ciui  lie 
iillowcil  tor  "Iciiiil  imd  otlicrcxiicnscs."  on  inicstinuitt', 

ol'   witlloMt   |irool'   of    wllill   tll('\    iWC. 

W'liiiti'N  ('!■  rliiir;^c>  were  |i;iiil  ont  tor  tlic  dctcnsc  of 
tlic  ships  of  IJi'itisii  owiici's  in  tiic  conrts  ot'  Ahiskn, 
iippcnrin^  in  tlic  Hritisli  scliciinlc  of  ciiiinis  lict'orc 
tilt'  I'jiris  'rril)iin;il,  slioiilij  i»c  iillowcd;  liitt  tlicrc 
must  lie  ii  ciTtitinly  ot'  proof  iis  to  tlicin,  nml  tlicx' 
r.iii  not  !)('  i'('co\('rc(|  witlioiit  j)roof,  iiml  on  tiicir 
iii('i-('  stiitcinciit  ot  tlic  cljiiiii,  jinnloHohs  to  tlic  ail 
'liniii/iiiii  cljiiisc  ill  ;i  (Iccliiriition  ;it  niiiinioii  law  — 
unless  tlic  theory  of  the  llritisli  ari;iiiiicnt  lie  correct, 
thiit  (linnancs  on  a  nciicral  allegation  of  le^^al  ex- 
penses can  hciiixcn  liecanscof  matter  of  a;^t;ra\ation. 

In  the  case  of  the  claini  of  (Jreat  IJritiiin  in  l)elialf  ot' 
her  siiltjects  in  the  ships  dcstroxcd  l)\-  Prussia  in  the 
Seine,  s/ijirii,  the  cliar^'c  for  Ic^'iil  services  of  lawvers 
eiiiployed   to  protect  their  interests  was  stricken  out. 

The  claim  is  iieNcr  allowed  in  such  cases  of  niariiie 
tort.      (Hdltiiii'in;  S  Wall.,  ,577.) 

(  )r  in  cases  of  wrongful  cMptiire  at  sea.      (Xiusfra 

Sruorii  iii'  h'rf//ii,  17  Wall.,  p.  ;;i.) 


141 


I 
I 


Till'-  vam:k  of  skai.  skins.* 

The  liritish  Aiynnieiit  cites  the  witne  ;sTlieo.  I.uhbe, 
the  h'adiiiii'  iiurcliaser  of  seal  skins  in  the  \'ictoriji 
market  diirin.u'  iSSd,  1S.S7,  and  ISSi)  t(»  this  effect: 

That  the  inark(>t  at  \'ictoria  was  ruled  l)\the  liondon 


'Till'  iiiinilici- of  seals  si'i/^id  mi  I'iirli  vessel  is  iiccniiitely  staled  in  the 
Aimuiit'iit  for  (Irt'iit  liritaiii. 


rw'wipp 


W 


14-: 


DA.MACKS SKAl.    SKIN    VALIIES. 


■lies.     This  liciim'  so,  even  it'  it  lie  iidiiiitti'd  tluit  tli< 


\  |)ri('fs  li;tv('  iiiiytliiiii;-  \i>  ilt>  with  tin-  niciisii 


Ldiiihti 

of  \;ihl('.  tile    tcli(h'lic\    (•)'  tlic    tcstiiiKillX    iis    Id    th; 


torciii-ii   iiiiirUi't,   ill  ('diiiicctidii  with    tiic   ;ictUiil    siili 


t   \ 


ictoriii    i>    ti>    the    cdiu 


liisiou    thiit    the    \  ict 


nn;i 


ncfs,  s(i  ruiiMi,  ;i 


re  still  the  tests  (if  \iihii'.-.  ill  tiii> 


The  ('\i(h'i  ICC  I  lischiscs.i  low  ('\cr,  t  hilt  there  Wiis  ill  \\;i\> 


ii    iiiiirUet    ii 


t    \  ictnriii.  iiiid    thiit    the   I 


(illowiiii''  were 


liii'i;'!'  l)ii\('is  iit  thiit  iiliice  iliiriiiL;'  the  three  \  em 


issC 


llcndori 


New   V 


Liililie,  re]ireseiitiii;r  .Miirtiii  Hiiti 


orl 


Aliiskii  ( '(iiuiuerciiil  ( 


(1111- 


|iiiii\  :     IJessiii^cr  i\i  ( )i\.;    The  I  i  iidsoii  W.w  ( 'oiii) 
I       '  -  - 


lehes  i' 


>c  ( 


)t  S.iii  r  liiiiciscd: 


1.  .^  A.  I 


);iii\ 


KISCdW  it/.. 


1SS7:    Theodore  1 


Ir.,  .^  ( 
fork:    I 


New  V 


iihlie,  re|ireseiitiiii:'  .Miirtiii  liiitt 
ork ;   ,1.  I'ldiuini  i\i:  <  "o..  of  N 


e\\ 


Nieiics  iV:  Co.,  of  Sim  Kniiicisco;    .Morris  .Moss, 
purchiisiiiL;' iiii'eiit  iit  \  ictoriii:   .1.  Uoscowit/:    Hudson 

\\,\\    ( 'olll|lilll\  . 

ISSH:    Theodore  Liiltlie,  re|»reseiitiii;:' .Miirtiii  IJiites 


Ir.    i^    ( 


.f     New     York:      Wiilter    l5ov 


lis: 


n 


lllllilll.    oi 


New     V 


ori 


11. 


vlelie 


i^    ( 


oi      ^illl 


OSS,   jiiircliiisiiiL;'  iiii'eii 


Friiiicisco:    .Morris    .M 

toriii:     'i'lie     lludsoii     l?ii\     ('oiii|iiiiiy:     .1. 


t    ill    V 


ill  Id 


n 


OSCOWIt/. 

With   tl 


lis  cxideiice  of  ii  iiiiirket  tit  X'ictoriii  iiiul 
with  the  (deiir  exideiice  of  iiiiother  iiiid  iicti\f  iiiiirkcl 
so  iieiir  lis  Siui  friiiicisco,  it  does  not  \ el  ii|i|ieiii'  how 
the    ('\idelice   ot'    London    sides   could     he   coliliietellt 

irc- 


Tlie  (diiiiiis  oi'ii^iiiiill\-  set    d 


iwil   m    the  stdiedille  | 


ill    tcriii-  liiised   (III    the  \'ict 


ol'lll 


seiiteil  ill  1  iiiis  were 
iiiiirket.  with  the  exception  of  those  of  .Mr,  Miiiisic, 
who  there  .sets  out  the  London  |)rices.  .\s  to  the 
other  cliiiiiis.  the  l'oreii;ii  iiii;rket  is  ii  new  theory. 

It  is  not  iiecessiirx'  to  iiu'iiiu  stiite  the  nieiisiire  ol 
reco\-er\'  lor  the  comcrsioii  ol  persoiud  |iro|ierl\. 
The  ciises  heretofore  ciiiefullx  iiiiiil\/.ed.  iiiii\  ersiilly 
hold  to  il  test,  tliilt  would  exclude  the   London   Iiiiirket 


l)AMA(iKS INTl'.UEsr. 

MS  ii  iiu'iisurc  of  \;iliif.  Wlu'rcxcr  iircsciitccl,  us  to 
rjirjid,  ill  CMscsot' luiii'iiu'  tori orcoutrfict,  sucli  ii  cliiiiii 
liiis  been  iiiviiri.ihly  riilcil  ;iL;iiiiist.  Tin'  rime  ot'  tlif 
iiit'iisurc  i>t'  viiliii'  ill  such  cnscs  is  tlic  iImIc  ot' seizure. 
IMie  jihnc  of  tile  measure  ol'  \  alue  of  cariio  is  imaria- 
l»l\  tlie  port  ot' tle|»artiir<',  it  a  market  exists  there  or, 
if  not,  the  nearest  market. 


143 


INTKKEST. 

Ill  limine,  it  may  lie  saiil  that  inti-rest  was  never 
liefore  claimed  ii|»on  |)ros|»ecti\  e  profits,  or  uiioii  aiiy- 
thiiii;'  j:i\('ii  in  lieu  ot  jiro.spective  profits.  Tlie  only 
reason  excr  nixcii  for  the  ;illo\vance  of  interest  at 
coimiioii  law,  or  l)\  the  ( 'i\il  law,  is,  that  as  prospec- 
tive proiits  or  future  earnings  can  not  lie  i;iveii,  inter- 
est shall  lie  alloweil  to  represent  future  earnings,  or 
future  profits,  as  the  nearest  approach  to  a  just  rule 
that  the  law  can  attain. 

Hut  her<'  is  presented  a  claim  for  future  earniuii's 
as  well  as  for  the  actual  values,  all,  too,  emhraciiij'' 
the  tlieor\  of  punitory  dama;^t's,  and  withal,  a  claim 
lor  iiiKTest  siiiieradded  to  the  sum  of  all  these. 


Apart  from  this  \ie\v  of  the  nialter,  upon  wiiich  no 
moit'  lime  will  lie  spent,  a  re\  iew  of  the  authorities, 
cited  in  the  opposiijo' ariiumeiil,  seems  to  lie  reijiiired, 
as  \\(dl  as  some  reference  to  the  principles  appl\  iii<.i' 
lo  the  slllljecl. 

((0  III''  (iii'iiiil  (ij  Sii'  I'lilirmd  iliiinihiii  nx  iiiiijiiriiii 
Hit'  tdsc  (if'llir  I  'iiilid  Stiitrs  iii/(iiiis\  lirii:il  Is  c'lltil.  This 
case  has  lieeii  ;iiial\/ed  in  this  ar;iiimeiit.  and  it  iip- 
pears,  as  Sir  U'ouudell  Palmer  stales,  that  the  decision 


144 


I )  A  ^r  A( ;  hs — i  ntp:k'  kst. 


;i  1(1..  p, 


Mill.,  p. 


Id. 


M.,p, 


procccdcil  upon  "onliiiiiry  jtiiliciiil  pi'inciplc 


III 


iiiiii  III 


reel 


tl 
for 


tcs  rlic  cspt'ciiilly  reckless  iiiid  willt'iil  cliiii'deter 
tills  seizure  i-oiiiiiiitreil    1»\'  the  iiiilit! 


le  wniii"'  111 


ii'\ 


ces  (II 


lirnzil.  tlie  sliiii  lieiii"'  then  under  tluit 


tions   iirotectKin. 


lie    i'lirther  si 


low; 


(ns   d 


oes    tli( 


record)  tlint     'the  ii;i\iiieiit  of  the  coniiiensiition  n\\ 


tl\   cliiinieil  at  the  tii 


iiideiiiiiitw  though  |iroinp 

for  nianx    Ncars  delaxed."      (See  \'ol.  ;{,  1' 


lie.  W  .1- 


llli. 


to  the    Treatx    of  W  ashiiii't 


ipers  rehu- 


on.  oil.  ,1 


V,\;-')iu). 


1 


le    "oniiiiarv-    pi.licial    principle      to   wliicli    ^i 


\olUl(l< 


■11 


aimer  adxci 


ted. 
itl 


ieiiioiistrates  as  lie 


how ; 


mar  that  case  came  within  tlu-  niies  where  interest 
should  lK'<ii\('ii  in  the  way  of  daiiiaiics  as  for  a  reck- 
less or  malicious  tort,   and  also  irliri(    tlurr  litis   hnu 


iiiim 


Isiil/lllilr  llr/iiil"   ill   til 


atioii.    when    ]ironi|i 


e    pa\nient  of  the  compeii- 
tl\   claimed,  and  with   an    iindi>- 


)Ute 


liasis  for  it,  set  forth  in  the  idaiih 


The  1 


eariieii   counsel   coiicHules  wi 


ith  :-' 


II J  \\\r 


foil 


OW'; 


Wlicrc  iiKincvis  (luc  witlidut  iui\' dptiiiitc  tiiiioet' 


|iiiyiiu'iit. 


anil  tlicrc  is  iki  coiitriic I. express  or  iiii])iit>'l.  Iliat  interest  slnil 
be  paid.  Ilie  laijilisli  rule.  iii'lcpciHicni:  of  statute,  is  that  ii 
can  not  lie  ciainii'ii. 


A 


no  he  I 


plotes  the  rule  of  the  New    ^  oi'k  judLiineUts, 
;is  to  /'///'  II  st,  as  follows: 

In  t'vo  actions  ajiainst  a  master  ol'  a  ship  t'lir  ii(iii(lcli\ 
cry  of  {■'(Kids,  it  was  lield  in  New  York  that  the  jury  iniulit 
jjive  daiiiaji'es  iltlie  cimduct  of  the  dereiidant  was  iinpniiici. 
i.  (>..  wlierc  IVaiid  ur  j^riiss  niLsconiiiiet  ciiiild  he  inijuiteil  tn 
him;  but,  it  ap|iearin<j'  tiiat  sncli  was  net  tlii'  laet.  it  was  nut 
alhiwed:  and  that  iiileiest  may  be  {iiven  by  way  ef  piinish 
nient  Ibr  any  illegal  cnnversion  ur  use  of  amithor's  piupeity. 

.\nd  the  l'",ni:li>h  rule,  ipioted  from  Sed^'wick.  where 
"It  (interest)  is  imposed  to  piniish  iiej^liLi'ence.  tor- 
tious, or  fraiidiileiit  conduct." 

(/;)  Till  .III  ji  Ti'iiiti/  ( 'iisi.  mill  till  ii/iiiiiiiii  iij  SirJiiliii 
Xiiliiill  is  I'ltnl.      Interest  was  ^iveii  under  that  treatx 


ini  tlic  cliiiins  \vlii«'li  nnctc  tor  ^'ilchts  Ixdki  Jidc  i'on- 
rriictcd  hct'orc  tlic  )i(';icc,  still  r('maiiiin<i'  owiii^'  to 
tlic'in  [  Hritisli  >nl)i('cts]  l)\-  citizens  or  iiiliiibitii  its  of 
tin'  I'liircil  Stiites;"  hut  it  wiis  |ir(i^i(lc(l  tliiit  cxi-n 
tliiit  |iro\isioii  should  not  extend  to  losses  occiisioned 
h\'  the  inanirest  ilchii/,  neji'li^ence,  or  willtu!  omission 
of  the  clainiiints. 

As  to  till'  clinins  in  i'livor  of  the  I'liited  States,  Sir 
.John  Nicholl  reconnnended  interest  on  the  a.seer- 
taineil  amount  of  tlu'  "original  (ost"  of  the  projx'rty 
of  the  (daimants.  ()f  coiu'se  the  ori,i>inal  cost  was  a 
certain  basis  for  the  computation;  itut  it  is  expressly 
provided  in  the  treaty  iu  that  case  that  a  recovery 
shall  not  he  had  for  losses  or  damaji'es  occasioned  l)y 
the  manifest  dchti/,  etc.,  of  the  idaimants.  (See  for 
the  distinction,  Uritish  argument,  id.,  p.  ')6\  et  seip) 

'V\h'  case  at  (ieneva  radically  diiVers  from  this  case, 
and  amonji' other  distinctions  it  is  to  he  observed  that, 
as  stated  1)V  the  Hritish  Arbitrator  at  (Ieneva,  Sir 
Alexsnider  ( 'ockburn  ((pioted  siijira),  the  ori<;iual  list 
of  [)rivate  (dainis  was  "forwarded  by  Mr.  Seward  to 
I\rr.  Adams  in  1S()(!,  iti/d  ((iiininiiiicufcd  hi/  flir  liitfcr  fa 
flic  liill'isli  (idri'iiniii'iit." 

(r)  Tlic  arfiiiiiiiiit  of  llir  Afl<>nii'i/-(iriiir(d  nj  llir 
Ihlitrd  Stidrs  (  11'///)  inidrr  tlir  Jiiidiiii/  of  tli  '  Kiiiiinor  of 
Orniiinii/  is  I'llrd.  it  is  true  that  that  advo  -ate  ar<>ued 
that  the  rniteil  States  should  have  interest  in  that 
(•ase  as  part  of  the  indemnity  (daimed  l»y  that  (iov- 
ernment;  but  the  case  is  not  an  authority  for  (irent 
Uritain.  for  the  reason  that  the  Commissioners  did 
not  aji'ree  upon  a  decision  and  the  result  was  another 
su|>])lenientarv  convention  between  the  two  countries. 
(See  Sir  Houmhdl  I'alnier's  review  of  the  case,  siijini.) 

(il)  Tlir  ciisr  ill  J  /'.  Wdliiniis  Hr/i.,  I'!lki)is  r.  Ktist 
Iiidiii  Cii.,  is  citi'd.  Was  not  decided  on  th'  jirinciples 
of  international  law. 

'idle  ca.se   turned,  too,  upon    the  rule    that   he  who 
11  s l!l 


V  ^ 

II 

1'  ■■ 

1 

!' 

1 

DAMAGKS — INTEREST. 


145 


146 


DA.MAGES — INTEREST. 


t!ik(.<  iiiKitlu'r's  inoiu'V  or  Iiis  uropcrty  and  turns  it 
into  nioiU'V  tor  Ins  own  usi'  sluill  respond  in  interest. 
(See  Sir  (.'hristoplier  Kohinson  iuid   Wirt,  infra.) 

There  is  no  (|Ui'stion  that  international  hiw  does 
not  sanction  the  allowance  of  interest.  It  can  only 
he  eharji'cd  as  "dania<>'es  for  withholdinji-  money  which 
the  jiartv  on^iht  to  |»a\  and  would  not  or  could  not." 
(I   (>|).  .Uty.  Cen..  ■-'(IS  (11'/;/). 

"  Interest  is  not  an  int<',i:ral  part  of  a  del)t  under  the 
(•onunon  law  ot  Mn^iland  as  accepted  in  the  I'nitiMl 
States."  (Set-  '2  Wharton's  Dii;'.,  sec.  2  [6,  ami  cases; 
(Jordon  r.  Ihiited  States.  7  Wall.,  ls8.) 

In  the  case  of  the  MoitHjn,  where  the  I'nited  States 
was  a  claimant  a^iainst  Colond)ia  liefore  the  Ih'itish 
Minister  as  umpire, .")  percent  interest  was  disallowed 
for  the  followiiit;-  reasons.  (pi<tted  from  the  opinion 
of  the  umpire: 

First.  Because  there  is  no  .settled  rule  as  to  tlie  iiayuietit 
of  interest  on  claims  on  countries  or  <j;overninents. 

Secondly,  i'.eciuise  it  seems  oi)en  to  (jiU!slion  wiu'tiicr  in- 
terest siiould  iicerue  (luring' tlie  jirogiess  of  diplomiitic  uejjo- 
tions,  whicli  are  often  jyrotriieted  in  tlieir  cliiU'aeter. 

TliirdJy.  Thin  rcusoii  iipplirn  irith  spccinl  J'orir  tit  najntin- 
tiiiHK  H'hiih  result  in  mi  iirliitnitinii  or  friiiiilli/  nyrdngniiciit,* 

Fourthly.  That  whilst  doinf;  what  hi'  consideis  strict 
Justice  to  tiie  cliiimiints  l)y  K'i^  'HK'  to  them  the  fnd  value  of 
the  use  of  their  \cssel  during;'  her  detention,  he  desires  to 
avoid  any  ii!>pcarance  of  iiiiiiinhiiiii  the  ('olomhian  iieoplo  at 
larjie  for  an  .at  with  which  very  few  of  tlicm  h:id  anythiii,ar 
to  do,  and  whicl.  alfected  no  Colombian  interests  heyoml 
those  of  a  few  si)ecnlators  in  levolutions  in  I'anama,  (Vol. 
(iti,  Hrit.  and  For.  State  I'aper.s,  1874-75,  pi).  4liO-lL'l.) 

l''inall\-  we  citi'  Sir  ("hristopher  Kohiiison,  who  wa.s 
the  reporter  of  Loi'd  Stowell  (Sir  W.  Scott),  the  ^reat 
Enulish  authorit\-  on  pnl)lic  and  private  international 
law,  on  the  (piestion  as  to  whether  interest  should  !)■ 
allowed  to  the  I'niteil  States  on  the  award  of  the 
Emperor  of  Kiissia  M^ainst  ( ireat  Uritaiii. 


"<  Ml  thin  point  see  Amci .  i .  I.iiiii;stiict  (10  I'u.  St.,  ll.T). 


UA.ArA(iES — INTEKEST. 


147 


'I'lic  I'dllowinL;'  is  liis  ii|)iiii(,ii  cMllcd  toi'  1)\  tlic 
I^rifisli  ( iii\  (•riiiiiciit  tm  this  sii  jjcct: 

'I'litMiiii'stidii  of  iiittMest  presents  11  (nicstioii  ot'cDiisiiicrablo 
iiii|)(>iliiiicc  and  doln^acy,  and  to  wliicli  it  will  lie  didicult  to 
a]i|ily  tliii  analofi'v  of  rules  dciisfd  lidiii  Iej;'al  jirocefdinji's, 
iniit'iii'ndi'Mt  of  the  political  considerations,  which  nniy  liave 
reji'iihited  the  conduct  of  tlie  power  niakinu  compensation  in 
tlie  part icnhu" case.  In  tiiat  view,  it  seems  to  be  a  reasonable 
distinction  wiiich  is  raised,  that  sovereif;n  powei's  do  not 
usually  ]iay  interest  unless  they  stipulate  so  to  do. 

The  ol)lij;iitions  of  (lovernnu'uts  for  civil  injuries  are  mat- 
ters of  rare  occuiTeiice,  and  deiiend.  in  form  and  substance, 
as  much  on  libeial  concessitnis, or  on  reciprocal  en-iajjcnients, 
as  on  the  intrinsic  justice  or  eipiit.v  <»f  the  claim.  I licy  (it'v 
iisiiiillii  compensations  inaiir  on  iiiicsliniis  in  dtmhl.  after  con- 
sitlcrahli'  iiitrrralu  nf  time,  hi/  irliicli  inhrcKt  is  much  inlidtivvil. 
They  are  also  conipensatimis  for  the  acts  of  others;  for  the 
c,onsc(|uences  of  error  or  misundeistandiuf;'  rather  than  of 
intentional  injury,  and  for  cases  in  which  no  prolit  or  ad- 
vantasi'  has  accrued  to  the  party  by  whom  such  conipeu- 
sation  is  made.  Considerations  of  this  Iciinl  seem  to  i'e(|uir(> 
that,  if  interest  is  to  be  paid  as  i)art  of  the  compensation  by 
treaty,  it  should  l)e  nmtter  of  special  arrangement  as  to 
anu»unt  an<l  particulars;  and  the  reasonableness  of  that 
expectation  supports  the  distinction  sungesti'd,  that,  wiiere 
MO  such  stipulation  is  made  between  Sovereifi'u  Powers, 
interi'st  shall  not  !ic  considered  as  due. 

Interest  is  not  to  bi'  computed  as  between  So\'ereii;ii  Pow- 
ers except  b.v  express  stipulation.  {Vol.  .'<.  Papers  K'elatinfj 
to  the  Treaty  of  NVashinjiKm.  p.  ."iti,").) 


I  Ik-   siiiiic   iiiltluM'itX'  states   the 
cinctK'  ill  the  tollnw  ini;'  words: 


'■('iii'fiii   ni 


Ics 


'lie 


The  I'lilcs  of  law,  as  far  as  Ihey  may  be  applicalile  to  this 
ipiestion.  do  not  lavor  claims  ol'  interest,  c\<-epl  under  special 
circumstances,  as  in  cases  of  a;4:reemciit.  expressed'  or  implied, 
or  of  the  possession  or  enjoyment  ot  intermediate  profits,  or  of 
iiijiir.v.  projierly  so  termed,  in  res|)ect  to  the  tortious  nature 
of  the  act,  for  which  the  compensation  is  to  be  made.     (Id., 

p.  :.t;i.) 


Ill   tile  (iciicxii    case    (•ci'taiti   iiitci'c'st  was  allowcil. 
rli(ill\-  ill  the  discrctidii  of  tlic  iivliiti'iitors,  in  lieu  of 


148  DAMAIJKS — SAYWARU   COSTS. 

certain  i'i»niiii<:'s,  wlu-iv  it  iippciirod  tliat  tlic  Aiiicri- 
caii  (tovc'i'iuni'i'.t  Iiad  prcsiMitt'd  tlic  cluinis,  which 
wore  ])assi'(l  ujxm!  l)y  tlic  arhitratovs,  iininediatcly  at 
the  close  of  the  war  in  lS(;(j. 

Interest  seems  to  liave  lieen  aHowed  at  the  hnvest, 
rate  from  the  date  of  the;  Hlin<>-  of  tlie  claims,  and  not 
from  the  date  of  the  capture  of  the  ships. 

In  this  case,  as  it  has  hi-en  shown  in  the  Introduc- 
tion to  this  ariiUiiient,  (>reat  Hritaiu  expressly  statcil 
that  the  circumstances  inrc  skcIi  tjiat  the  chihiis  cmbl, 
iKit  hr  iiiiilifcil  or  j)iisf>/fril,  and  suj^yested  that  in  lieu 
of  auditinji'  and  ])resentinu'  the  claims' at  the  time  a. 
Connnission  should  l)e  appointed. 

This  suji<icstion  resulted  in  the  Paris  Arbitration, 
and  the  tdaims  then  for  the  first  time  aj)peared  to 
the  I'nited  States.  Even  then,  owin<i-  to  the  (pies- 
tions  of  citizenshij)  and  others,  no  computation  could 
l>e  or  was  made,  and  thi-n  ciiitsidrrdfioii  icas  h//  tu/rec- 
nii-iif,  in  the  stipulate(l  tindinjis,  a<>'ain  postponed. 


It  results  that  undi-r  the  law  and  precedents — 

(1)  Interesl  can  not  be  allowed  as  a  matter  of 
right:   and 

("2)  That  under  no  circumstances  can  interest  be 
allowetl  upon  values  from  a  date  ])rior  to  the  I'aris 
award,  or,  as  we  sulimit,  prior  to  the  ascertaiiuneiit  of 
ulie  claims  l»\'  this  ( 'ominission. 

(3)  Tliat  tlie  rate  of  interest,  if  allowed  at  all,  can 
not  l»e  tixe<l  l»y  a  local  rate  or  by  a  Mumicij)al  rate. 

THBB    "COSTS   IN   TH15   SAYWARD    CASE." 

The  Tnited  States  stand  upon  tiieir  motiou  todismiss 
this  (daim  on  tlie  ground  that  the  ( 'oiuuii— -ioners  have 
no  iurisdictiou  to  considei-  it  under  the  « ■onventioii, 


DAMAOEH — SAYWAKIJ    C()ST8. 


149 


tor    the    t'ollowiiit^'  rciisoiis,    iiiiy    one    of    wliicli    is 
conclusive': 

'riiii  item,  without  interest,  is  for  >>()2,S  17.12, 
iulmitteil  to  he  tlie  ex])enses  of  the  British  (Joveni- 
ment  in  and  about  a  vain  apidication  to  the  Supreme 
Court  of  tlie  I'nited  States  for  a  writ  of  i»rohil)ition 
to  the  Federal  Court  of  Alaska  in  the  case  o'' the  IT. 
/'.  Sdifininl,  a  fishin;^'  schooner  worth  at  the  hi<>hest 
estimate  87,000.  It  ajjpears  by  the  claim  i»resented 
in  behalf  of  the  owners  of  the  schooner  that  for  the 
costs  of  till',  oiviicys  in  litifi'ation  riiflrc/i/  onfsiilc  of  this 
r'i(irf/(',u\iv\i.^  in  belial' Of  the  British  Goverinneut,  there 
In  a  claim  for  lej^'al  expenses  and  "co.sts"  amounting  to 
sl,,SO0. 

(1)  There  is  nothinj^'  referred  to  this  ("ommi.ssion 
by  the  (!onveiition  under  Article  I  except  "claims 
on  account  of  injuries  sustained  by  pkrsons  in  whose 
behalf  (Jreat  Britain  is  entitled  to  claim  con)pensa- 
tion  from  the  Cnited  States  and  arising'  by  virtue  of 
the  Treaty  aforesaid,  the  Award,  and  the  Findings 
of  the  said  Tribunal  of  Arl)itration,  as  also  the  addi- 
tional claims  specitied  in  the  tilth  paragraph  of  the 
preand)le  hereto." 

The  United  Kingdom  of  (Jreat  Britain  is  not  a 
"person." 

(2)  This  is  not  a  claim  appearing  in  the  "Findings 
of  tlu>  said  Tribunal  of  Arbi^aIion"  or  an  "  A(Mitional 
claim."  It  did  not  appear  in  the  schedule  of  tlie  Brit- 
ish claims,  pages  1  to  <!0,  inclusive,  specitied  in  the 
Findings,  which,  as  has  been  seen,  are  a  part  of  this 
Convention.  Those  claims,  which  were  before  the 
I'aris  Tril)iuial.  and  specilically  pointed  out  in  the 
Findings  nameil  in  the  C<in\»'ntion,  were  set  out  in 
the  British  case,  which  was  dtdivei'ed  on  (tr  Itefore  the 
tlth  of  Septend)er,  lSlt2,  in  accordance  with  Arti(de  III 
of  the  Treaty  of  February  2!l,  1sil2. 


Vol.  I,  Amer- 
ican Re- 
print, p.  5. 


loO 


DAIIAOKS — SAYWAKI)   COSTS. 


T.il,?<,Ain.i.        'I'l,,.,.,.    \v!is    llotllillli'    iliiullt   this   clililll    ill    tllilt 


1  (•  :i  n      re- 


Ciisc 


l'(i!t 


print,  p.  iiiid  iKitliiiin'  nt'  tlic  kind  Wiis  |trc'seiit('(l  until  thru 
nioiitlis  thcrciijhr,  wiitMi  tlio  British  countc;'  cmsc  \v;i> 
lih'il,  discldsini;'  ;it  jiiijic  ."il")  of  tliiit  ('(tuntcr  ciisc  this 
idcnticid  ciiUMi,  which  wiis  its  first  attoniptcil  jiititcitr- 
ancc  Itctiirc  the  Pin'is  Triliuniil. 


I'll  go    !*<•..      \(i\v  thv  liritish  Mr^^'Uiiicnt,  here,  stntcs  th«'  t'( 


I'ol.  .'id, 


)lln\v- 


nii. 


Tilt'  liicts  arc.  tlioret'oro,  lliat  tliis  imrticuliir  claim  was 
/onuiiliitiil  mill  jilticiil  hil'iiri'  Ihv  Paris  TrihiiiKd.  It  irtts  nut 
then  ()lij(ct(il  ti>  as  (I  I'lih'  mutter  for  coiisiilcrtttioii. 


I    Am.  i; 
piiiil,     PI 


'I'iiis  iiuiiin,  is  il  striking;'  tTnir. 

As  iippriirs  li\-  I'riiliKdl  -1  of  the  l';iris  'rriliniial, 


oil 


is-m!  April  4,  IX\)'6,  tht-  I'liitcd  States  |irom|)tIv  moved  to 
strike  ll/is  itnii  out,  on  tlie  i;rouiid  tiiiit  it  was  tendered 
for  tlie  first  time  in  fhi-  coiniter  case,  and  was  not 
])ertineiit  or  relevant  by  way  of  reply.* 

<  )n  A])ril  7,  1S93,  the  American  counsel,  Rfr.  Phelps, 


Vol.ll.Aniii- 
i  0  n  n    lit  0  - 


riiit.  p.  called  the  motion  uj),  and  after  some  discussion  li 


1 

149 


Vol.     I.       III. 


tweeii  counsel  ami  the  arbitrators,  it  was  postpoiierl 
until  April  rjtii. 

On    the    latter   day    (April    12th), 


as  aniiears    hv 


J'i'iiltiiiil  ;,  the  consideration  of  the  motion 


])oned  until  such  time  "as 
l»v  the  Triliimal."" 


diall  I 


lerea 


fter  1 


was  post- 
licatcd 


)(•  1111 


'V\ 


le  arLi'umeiit    on 


th 


mam    ipiestioiis 


foil 


oweii 


Viil.  ll.l(l.,p 

nil. 


Vol.  I,  1,1.,  p 


and  the  next  (tllicial  act  touchinji-  this  claim,  it  having;- 
been  desii^nated  by  the  Uritish  counsel  as  a  matter  of 
"small  imiiortaiice,"  was  on  .Mav  iU,  1S1I,'{ — I'mlmul 
■  10— w 
Charle 


hen    the     IJritish     ( lovernment,   fhrouj'-h 


luissi 


Sir 
II,  siibmilte(l  to  the  Ariiitrators  in  writ- 
ing- tiic  (|iiestioiis  of  fact  and  claims  of  (ireat  liritaiii 
as    to    which   a    tindimj'    was    asked,   de.sci'ibiu"'    the 


claims   as 


b.-t 


ween    iia: 


i-es     1     to    CO    of  tlu 


oriti'inal 


British  case  oiil\-.  t/ins  i.nhiilii/i/  (iiid  irilliilriiitiiif)  this 
roiitisliil  tic  III. 


It  Wiis  put  In  iit  tliB  L'\ti'fnic  tnd  of  llic  roiiiitci'  ciis 


DAMAfiKS- 


<AYWAltl)    COSTS. 


151 


It  wiis  tlicrt'torc  never  recei\cil  Itv,  iiiid  wjis  never 
•lietoi'c  the  I'iiris  'rriltiinjil." 

'\\t  conclude  the  Paris  history,  the  Triltuniil  itself/ ':|||i'l'P' 
niton  the  ))ro|M)sition  siildnitted  in  writing'  l>y  Sir 
CliMrles  liussell,  on  August  loth  t'ollouinji',  niaile  the 
Kindini^s  of  Fiict,  and  found  the  claims  before  them,  in 
res|K'('t of  which  Findin^i'sof  Fact  were  re(|uired,to  ho, 
nidy  those  l)ct\ve(Mi  paii'cs  1  to  (iO  inclusive  of  the 
c>rij;inal  Hritish  case,  thus  formally  excluding-  this 
claim  l)y  the  act  of  the  'rrii)Uiial  itself  as  one  vif 
"  hefore"  it. 

The  British  arynnnent  is  auain  in  ei'ror  when  it 
>ays  there  Were  no  other  costs  for  7'//r  Saiiinird  wliicli 
could  i»e  referreil  to.  'Phe\-  have  been  referred  to 
and  stated  as  amonntinji'  to  >>l,S(l()  in  the  Uritish 
ar<>'ument  at  paye  111,  and  wen  referred  to  and  set 
out  in  tlu'  (iiif/ii/iil  Jirllisli  s<hc(liil<',i\t  paye  I'.i,  jiassed 
iilion  as  ''hc^fore  the  I'aris  Triitunal,"  amouutin;^'  to 
si. 100. 

'I'liey  are  there  set  down  as  claims  on  account  of 
a  "person,"  i.  e.,  Cooper,  the  owm-r  i>f  the  Sai/iranl. 

(;5)  This  claim  is  not  an  "Additional  claim"  lim- 
ited l»y  Article  1  of  this  Convention  as  specitiecl  in 
the  tifth  paragraph  of  the  preand)h',  and  is  as  ex- 
pressly e.xcludeil  from  reference  under  that  head  as  it 
is  in  terms,  as  above  shown,  exchnled  from  the  class 
appearinii'  "before  the  I'aris  Tribunal." 

(4)  As  to  the  etfect  of  the  "Ai)pendi\"  of  (daims 
attaciicd  to  tluf  ('onvention: 

The  title  of  that  Appendix,  as  attached  to  the  Con- 
vention, excludes  the  co.sts  in  the  Sni/ironf  case  for 
tile  reasons  itefore  stated.  That  title  is  "Claims  sub- 
mitted to  the  'I'ribunal  of  Arbitration  at  i'aris."  The 
words  "costs  in  the  Sdjiinird  case,"  as  mtiv  con.strued 
l)v  (treat  Britain,  are  interpolated  under  that  title. 
It  need  hanlly  l)e  arj^ued  that  such  an  annex  or 
schedule  cannot,  in  anv  case,  control  the  C(mventiou, 


80- 


152  UAMAGKS — 8AVWAUI*    COSTS. 

or  ii«l(l  to  the  ( '(tiivciitioii  <i  cliiim  or  a  iiiiitti-r  tx- 
cIikUmI  1)v  tlic  provisiuns  ot"  tlic  ('onvciitioii  itself.  It 
liiis  hfcii  sct'H  tliiit  the  costs  ill  tlic  Stii/irtail  ruse  jirc 
so  i'X»'lu(li'(l.  Till'  niK'  of  iiitcritrctiitioii,  .is  lias  hccii 
seen,  is  the  siiiiic  of  ii  treaty  as  of  a  statute.  The 
attacliiiieiit  of  sclieiliiles  to  statutes  is  a  coiiuihhi 
imu'tier  eiiouiili,  hut  this  is  the  rule  as  to  them: 

Wlien  ill  any  inaiiiu'r  rt'itii;;iiaiit  to  the  i)rovi.sions  of  the 
statute  itself,  tlie  statute  will  eoiitrol  over  the  .sehedule.  (See 
lie}-,  r.  liaiiies,  VJ  (.">;'i  Ad.  \  i:i.,  lil-'T  (Tiii»lnl,0.  .1.):  Marl 
left  r.  Cibiis,  ")  M.  \  {',..  IKi;  Allen  r.  Flieker,  10  Ad.  vV 
HI.,  tMO;  Hejiina  r.  Ifnssell,  i;!  (}.  I!.,  L'.iT;  Dean  r.  (heeii,  L. 
K.,  s  1'.  I).,  79;  Clarke  /•.  (Iraiit,  h.  li.,  S  Exeh.,  \ir>2.) 

('»)  Kveii  if  the  matter  were  not  ahsolutely  cdu- 
cluiled  oil  the  (|Uestiou  of  j'.iiisdietioii,  the  couusel  of 
tile  I'liiteil  States  are  unaware  of  any  priiieiitle,  hv 
which,  the  lejial  expenses  of  a  defeated  party,  incurred 
in  a  case  wherein  lie  has  vainly  invoked  the  wronn- 
judicial  jurisdiction  for  relief,  can  he  allowed  liini. 
The  rule  is  otherwise  in  a  proper  case,  if  the  partv 
has  pursiie(l  the  jiroper  jurisdiction  hy  a])peal. 

No  reclamation  can  he  made  a;.;ainst  a  (lovernmeiit, 
upon  judicial  action  in  its  courts,  unless  the  proceed- 
ino'  comi»laiiie(l  of  has  Iteeii  sancti(»ned  hv  the  court 
of  last  resort  in  the  judicial  system  of  the  coimtrv 
comi)lained  of,  or  there  is  a  /(//((I  excuse  for  the  failure 
to  ap|ieal. 

See  cases  directly  in  point  under  the  American  and 
Hritisli  ( 'laims  ( 'oiiimissioii  of  1871  from  pp.  ss  to 
141,  iiudusive.  (\'ol.  (i,  papers,  etc.,  'i'reatx'  of  Wash- 
iii;.i'ton.) 

It  is  not  true,  as  intimated  in  the  Hritisli  arji'imieiit, 
that  the  a)iplication  tor  writ  of  prohihition  was  a  con- 
sent proceedinji'. 

It  was  viji'orously  contested  hy  the  I'liited  States, 
and  the  tififc  mho/c  of  the  Secretary  of  State,  referred 
to  in  the  British. \,r<.;ument,  [Ajiril  <S,  18<S8],*  recoo-iiizes 

'  The  imphiliitioii  iiinceedini;  was  not  iutilitiitod  till  .luiiiiurv,  ISIM. 


m 


"AKDITIONAI-    CLAIMS. 

tlic  fiict  tlijit  oiijicd/  |)r(M'('»Mliiijis  liiid  Ik'cii  tfikcii  in 
tlic  Sdjiintnl  ciisc  hy  ('oo|)»'r,  jiikI,  (»t"  cniirsc,  Iwis  iu» 
n't'iTciicc  to  tlic  iiiipliciitioii  tor  ii  writ  of  proliiltitiou 
of  years  hitcr.  Tlic  costs  in  the  Stii/iranl  cjise  in  the 
litijiiitioii  so  "iippciiled"  nii<;ht,  on  Jiiiiiciil)le  adjust- 
iiieiit,  he  inchided  in  tiie  tMUivention,  anil  tlici/  nrre. 

F'liiiillii,  the  owner  of  the  S<ii/ir(inl — the  cliiiniiint — 
as  has  heen  seen,  is  a  civil  citizen  of  the  I'nitcd  States. 
Thoinas  11  ('oo|ier  is  the  sole  owner  and  claimant 
within  the  iiiidinys  of  fact  of  the  I'aris  Trihinial. 


153 


THE  "ADDITIONAL  CLAIMS.' 


These  are  for  the  owiM-rs  of  the  W  diiilviir,  the 
W'iinJ'nd,  the  /Irmlrtld,  and  the  O.'^cdr  dnil  lldflir. 

I'reanihle  5,  made  a  |iart  of  Article  I,  hy  reference, 
states  that  the  l^nitecl  States  admits  no  lial)ilit\-  as  to 
them.  The  facts  reuardiiin'  the.sc  cast-s  are  analw.ed 
under  their  ]n-o|»er  heads,  infra. 

The  case  of  the  W'ii/ifiid  is  concluded  aiiiiinst 
(ireat  Britain  hy  the  action  of  ('a|)tain  I'ari',  Her 
.Majesty's  Naval  Commander  in  the  I'acitic. 

'IMie  handinji-  of  the  W'liii/'ird  o\cr  to  the  rnited 
States  authorities  for  prosecution  under  the  revenue 
laws,  l»y  the  commander  of  a  Uritish  ship  of  war, 
estops  that  ( io\ crnmeiit  from  makin<i-  a  claim  as  much 
as  if  that  action  had  heen  taken  1)\-  ro\al  order.  It 
is  universally  ivco;^iii/.ed  that  on  the  lii^ili  seas  or 
in  forei;;ii  waters,  the  commander  of  a  commissione(l 
piihlic  ship  of  war  represents  the  sovel•eiJ;llt^■  itself, 
and  speaks  for  it.  Kverythin;.;-  done  hv  him  is  pro- 
sumahly  l»y  the  direct  authority  and  express  order  of 
the  State,  until  stich  acts  an;  e.xprt'sslv  disavowed. 
(See  case  of  "Trent.") 

On  this  all  writers  on  international  law  are  aji'reed. 
(See  Hall  Int.  Law,  sees.  (;5-22(i.) 

The  point  that  the  seizure  was  made  outside  of  the 


11  s- 


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Sciences 

Corporation 


i  i  WIST  MAIN  STRUT 

WIBSTH.N.Y.  USM 

(716)  S72-4S03 


■• 


:.r  1 


154  *'A1>1)ITI0NAL    CLAIMS." 

jiirisdictiiiii  liiis  notliini;  ti»  rest  ii|m)Ii.  WIicii  tlit- 
Itritisli  sliip  W'niiliiil  ciiiiu*  within  tin*  coiitrnl  oC  llcr 
Miijfsty's  ship  of  Will',  ill  the  liiirltoi-  of  riiiiliiskii,  so 
t'iir  iis  jiiiy  |tn\  ih'^f  tVdiii  cxtrii-lcmftiriiil  seizure 
wjis  coin-eriu'il.  it  wiis,  iis  it  cniihl  In-,  Wiiivcd  l»\  the 
iutioii  <it'  (ii'ciit  iiritiiiii  iiftiii<:'  throii^^h  CniniiiiiiMh-i- 
riiiT. 

The  !i<l<liti<niiil  cliiiiiis  iiic  not  ;;-o\criH'il  hy  tlic  <iinl- 
iiijis  of  t'jut  or  th«'  procctMliiios  of  tlit-  Paris  'IVilniiial 
in  iiny  rcs|H'ct. 

TIm'  intcriijitioiiiil  (|iicstioii  of  jurisilictioii  licin;;'  out 
ot' tlif  Wiiv.  issue  is  tiikfii  w  ith  the  position  of  the  llrit- 
ish  rounsfl  tliiit  tilt- C'onunissioncrs  iimh-i'  the  prcsi-nt 
('oiivcntion  oin  n-vis*-  the  lin<liii;>-  of  the  court  of 
Ahiskii  on  any  jiiritlifjil  (pifstion.  No  intt-rnationai 
court  can  n-xisc  the  jiuljjnicnt  of  the  court  of  a  nation, 
uiih'ss  tliat  iinl;iiiu'nt  Itc  l)y  tlic  coin*t  of  last  resort  in 
its  jinhcial  system.  This  rule  is  estaldisheij  as  one  ot 
iiiiiversai  application,  to  wliich  there  ca;*  l»e  no  excep- 
tion, iinh-ss  an  a|)peal  was  prevented. 

The  owners  of  the  Wniifhil vnw  not  eiitor  this  iutei- 
iiational  court,  witlioiit  sliowin<:'aiiiinsuccessfulappeal 
to  thi-  hist  appelhite  jurisdiction  in  the  judicial  system 
of  the  I'liited  States.  (See  vol.  (I,  I'apers,  etc.,  Wash- 
ington Treaty,  pp.  88-141),  where  the  authorities  are 
collected  and  tlu'  whole  suhject  is  exhaiistiveh  con- 
sidered and  is  rejjeatedly  passed  upon. 

In  this  case  the  point  of  jurisdiction  was  not  made 
hy  the  owner;  he,  projierly  ac«piies<'in;i-  in  the  direction 
of  the  coniinander  of  II.  .M.  S.  McIihiiiiiik;  defended 
on  the  merits  and  was  condemned,  and  took  no  ap- 

Iteal.  Moreover,  for  the  Whiijhil  to  recover  would 
>e  .ijiainst  jiuhlic  policy.  Whatever  purp<»se  of 
t'X«"ii.se  lu-r  distress  uiiyht  serve,  for  eiiterin<>'  the  sea, 
»\\v  was  thereafter  found  actually  en<>ji;i-ed  in  taking 
Heals  in  violation  of  the  Imrs  of  hotli  ( treat  Mritain  and 
the  I'liited  States,  as  is  admitted  on  all  sides. 


'ADUITIONAI.    CLAIMS. 


156 


TlIK   O.SCAK   AND    IIATTIK    CASK. 


It  is  tlic  sHtlcd  rule  in  surli  cast's  that  Ih>w»'v«t 
the  tiu'ts  may  turn  out,  if  flu-  captor  acttMl  on  reason- 
able cause  of  suspicion,  daina'^es  can  not  Ite  allowetl 
for  tlie  seizure,  liut  in  tins  case  Her  Majesty's  (Jov- 
ununent  under  the  dhhIiis  rirnitll  .set  out  wliat  should 
he  considered  the  proi)ai)le  cause.  'I'his  order  was 
adopted  in  tlu'  United  States.  On  the  (piestion  of 
probahle  ause  we  cite  Tlir  Isaln'llii  'riioiii/hsini.  Am. 
and  Hrit.  .Mixed  Com.,  N'ol.  6,  Papers  l{elatin;>- toWash- 
injiton  Treaty,  p.  !t3;  I'drifit/m;  id.,  p.  !(7  et  se(|.,  and 
cases  cited.  .And  see  />/'.  Liisliiiiiflmt  in  the  Liticailr, 
■2  Spinks,  -inC;  Tlir  r>fnlw(K  ."•  Wall,  28,  which  was 
hefore  the  .\m.  and    Hrit.  < 'onnnissioii.  vol.  (»,  jiapers, 

etc..  pp.  i;{(:-l.'$!i. 

In  thi.«  .  ase,  imder  the  iiioi/iis  rininli.  the  Osxir  uml 
lliitfir  was  turneil  over  to  II.  .M.  S.}[(l/i<tiii<iir  in  \'nv- 
inji'  Sea.  It  is  not  dispiiteil  that  the  tacts  were  cor- 
i('ctl\  repr«'sented  to  the  commandei'  of  the  Mil/m- 
tiiriir.  That  otlicer,  Ity  takin;^'  the  (isKir  (iml  Hitltir 
into  court,  passed  his  jud^i'ment  upon  prol»alile  cause. 
Her  case  thus  passed  from  the  control  of  the  I'liited 
States  and  the  responsiliility  for  prosecution,  from 
then,  was  in  the  hands  of  the  ollicers  of  the  Ihitish 
(lovermncnt. 

The  court  of  (irst  hearin^i' — the  supreme  coint  of 
Hritish  ('oluml)ia — on  a  full  hearing  of  the  facts,  con- 
denmed  the  ship.  It  is  saiil  now,  that  on  reversal  of 
That  jud^iinent  by  the  appellate  coiu't  of  Her  .Majesty, 
the  I'nited  States  are  lialtle  as  tor  dama;;es  for  the 
seizure.  Neither  (Jovernment  would  l»e  liable  on  the 
facts  of  the  case,  hut  in  any  <'ase  the  responsil»ilily 
nuist  rest  with  Great  Uritain. 

The  ca.ses  of  the  Ifrmitttti,  the  Wdinhiif,  the  ^).sf7//- 
(1)1(1  lldtfic,  and  the  Whiificd  are  hereafter  esp«'cially 
treated  inider  their  respective  heads. 


ill 


156 


OB8EUVATIONS    AITUYINt;    ONLY    1(»   CKKTAIN    CLAIMS. 


The  I'lifli/iiiilir,  in  Xiiih  lliiif,  Xn.  Jl. — This  \«'sscl 
wiis  t'oiiiid  ill  wfitcrs  witliin  tin*  exclusive  jurisdiction 
iA'  tlic  I'liitfil  Stiitcs:  slic  \v;is  l»(ijinl(  tl  l»\  tlic  i»Hi<-('r> 
ofciistdiiis,  w  liii  liiiil  Im'cm  ii«l\  is«'(l  tliiit  slu-  liiid  <'srii|H'd 
tVuiii  ;i  prcviims  seizure  tliiit  liiid  Iteeii  iiifid*'  under 
tlie  ilirertinii  4it"  tile  I'reiisiuy  hepiirtiiH-nt  tor  iille;;»'d 
violiitioli  ot'  tlie  liiws  ol"  tile  I'llited  Stiites. 

The  revenue  eiitter.  witlunit  dehi\  .  towed  lier  to 
thi'  nearest  teh';ii:i|ili  st;ition,  iit  Port  Townseiid,  ii  six 
lioiirs'  run  ;ind  ;it  oiiee  i-oiiiniuiiieiite(l  with  tlie  Tretis- 
ur\  heiuirtineiit  sit  Wiisliini^toii.  wliereU)»oii  luT  re- 
h'iise  w.is  iiniiiedijiteK  ordered  liy  tele^rii|tli.  She 
Wiis  detained  hut  a  part  ot'  one  day,  and  the  utmost 
possihle  ex|»edition  was  used  in  olitainin^-  authoritative 
instiiietioiis  ill  reiiiinl  to  her  case. 

l"'or  this  act  (Jreat  |{ritain  lirin^i's  a  elaiin  lor  "sei/,- 
iire"  and   for  daiiia;ies  tor  luture  cateh. 

It  need  not  lie  ar;^ued  that  the  ;:eiieral  rule  is  thai 
all  i'oi'eii:!!  vessels,  and  tor  this  |iur|iose  evt-ii  ships  ol 
war,  are  lialtle  to  \isitatioii  tVoni  riistoiiis  and  (jiiar- 
Jllitiiie  oflieeis  ot'  the  nation  whose  jurisdirtioii  tlie\ 
enter.  (See  Kakel's  llalleck.  N'ol.  I.  p.  iMT,  not«'S  ."> 
and  <;:   and  see  Hall.  \>\i.  11  •.')-■_'<•()-•_' (lit. 

The  I'llited  States  jiave  statutes,  calleil  "hoveriiiii 
acts,"  similar  to  those  of  (Jnat  l>ritaiii,  and  "ollicers 
of  rext'iiiie  cutters  are  aiithori/.eil  to  search,  examine, 
and  remain  on  ItoanI  all  iiicoiiiinji  vessels,  domestic 
or  foreign,  when  within  4leaiiUt's,  or  li'  miles,  of  the 
coast."  (Kev.  Stat.  T.  S.,  sees.  "iTdO-JSCT-JStiS;  and 
see  9  (leo..  II,  clia]».  .'i5. )  The  Kn^ilish  law  was 
enacted  in  1T3.">;  the  .Knu'rican  a«'t  in  IT'.IH. 

The  law  as  to  a  vessel,  that  has  put  into  a  foreijfU 
port  in  distress,  is  |»erfectly  well  settletl.  Tlu'  privi- 
le;;e  of  siudi  vessel,  l>v  the  coinitx  of  nations,  which 
in  this  respect  has  hecoine  international  law,  is  admit- 
ted to  the  fullest  extent:  Itut  the  exemption  does  not 
<>o  to  the  len^ith  of  ex«dudin;'-  reasoiialile  quarantine 
or  customs  inspections.     The  detention  for  customs 


OUSEHVATIONs    AI'PI-YING    ONLY    TO    CKUTAIN    CLAIMS. 


157 


iiis|HTtii»ii  iiiiiy  Ik'  tor  a  surticiciit  tiiiu-  to  jisr«'rtiiin 
the  i'liiinictcr  of  tlic  ship,  :iii<l  in  rnsc  th«'  (listrcss 
|trivil»';i»-  is  t-hiiiiu'd.  l>y  prott-st  or  tttlu*r\vis«',  the  iiu- 
tlioiitics  jiH'  nitirh'il  to  Itr  rciisoiuiltlv  siitistictl  ut"  tlic 
<>oo<l  tiiith  of  siH'li  cliiiiii.  The  |trivil»';^c  itself,  so  far 
as  pnipcrty  is  cuiiceriKMl,  jjocs  only  to  tlic  ('Xciii|itioii 
of  tlic  ship  from  the  excciitioii  <if  the  laws  tif  the 
jiirisdietioii,  \vhi<"h,  l»ut  for  t'u'  privile<>'e,  iiii^Li'ht  work 
tortcitiire  of  ship  ur  ear;:<>. 

There  is  iiti  ihnilit  whatever,  either,  that  if  the 
privilcii-c  lie  elaiiiied.  ami  the  jiood  faith  of  the  ••laiiii 
is  fairly  doiihted.  the  (piestinii  may  lie  liroiluht  iieftire 
the  eiiiirts  (if  the  nation  of  the  port  for  trial. 

The  liiinlen  of  provin;;-  the  iieeessitv  or  distiH'ss, 
which  liroiiiiht  the  ship  in,  is  upon  the  ship.  (The 
l>iiiini,  7  Wall..  i>."»4:  ami  sec  The  ('iijinilidiii  ii,  1  ( '. 
Rol).,  -iSK.) 

In  any  case,  however,  the  privilcji'c  mnst  lie  as- 
serted and  claimed  promptly  frnm  the  antlioritics  of 
the  jnrisdietiun  in  person,  or  liv  a  consul  of  the  ships 
nation:   otherwise  it  does  not  avail. 

Ill  lllis  iilsi,  lis  llir  ('iillllllissiiiiiilf  ir'lll  Jiiiil  nil  iij'ii- 
riirr  to  tlir  lirrOI'il,  tlir  rlililll  imir  scl  iiji  on  llir  jiilii  of 
this  nssil,  tliiil  slic  inis  ill  .\riili  I'tiii/  to  " lir  lirr  rinl- 
ilif"  or  otlirnrisr  thuii  ilistirss,  irns  nmr  iiiinlr  to  tlir 
risitiiii/  olliiris  i(f  11111/  tiiiir,  or  hroiii/lif  to  llii'ir  uttnitioti 
liininillfi  or  iiiforiiiiillif! 

On  the  lon^'  I'acitic  coast  of  the  rnited  States, 
whi«di  is  especially  «'Xposed  at  all  times  to  olVenses 
ajiainst  the  revenue  laws,  or.  for  that  matter,  on  any 
other  of  their  coasts  washed  l»y  the  liij^h  seas,  the 
]iroper  ofHct-rs  of  the  customs  service  may  visit  a 
ship  and,  upon  reasonable  suspicion  as  to  its  charac- 
ter, detain  it  for  the  necessary  time  to  ask  for  instruc- 
tions from  their  (lovernmeiit. 


Th 


u   riii'lit  and  the  iiractic*'  is  one  of  stdf-iirotection. 


and 


not  one 


that 


anv  nation   can   surrender. 


Til 


is.' 


distress  theory,  and  the   hill  for  damages,  ori^iinated 


158         OBSERVATIONS   AI'I'LYINO    ONLY   TO   CERTAIN   CLAIMS. 

with  Miinsic,  liki*  iiiiiiiv  other  things,  l>ut  all  iinwit- 
tiii^fly,  he  did  not  tit  his  ]>root's  to  th»*  law  rc(|iiii'iii;^ 
that  the  tliHtross  privih'^c  should  l>cproiii|itly  chiiiiu'd. 
ill  onler  t<»t'oriii  tivcn  a  pn'tt'iist'  tor  his  {food  hope  of 
avails. 


Tlir  Ithicl;  IHaiiiniii/,  \<).  '),  anil  Jinms  (iintilin,  Xo. 
11. — 'I'hese  rlaiiiis  are  siilmiitted  on  the  ((iiestioiis 
raised  t>ii  the  motions  to  dismiss  them,  t'oiiiid,  respee- 
tively,  at  pa<>es  1(!,  tol.  60,  and  37,  lol.  50,  of  Appen- 
dix A  (the  pleadiii;;s)  of  the  IJeeonl. 

Tliey  are  treated  in  the  Arf^nmeiit  ot'(Jreat  Mritaiii 
as  it"  siii)mitted  4in  the  merits, 

'I'hev  are,  however,  snhmitted  under  stipulation 
found  at  pa^ic  17  (id.),  wherein  it  is  agreed,  sul»ject 
to  tli«-  sanction  of  the  Commissioners,  that  thev  ma\ 
lie  proeeeiled  with  tor  tlu'  purpose  of  reportin;;-  t'a«t> 
and  eoiielusions  to  the  respective  (lovernments. 

I'roviilcd  tliat  the  i|iiv8tioii  uf  Jiiri.sdiftioii  of  tlic Coininis 
sioiuTsniHlertlie  Convt'iitioii,  in  respect  of  saiil  claims,  slmll 
remain  antlccidcd,  but  the  <  'omniissioners,  in  tlieir  di.sciH'tioii, 
may  report  tlieir  opinion  on  tliati|uestion,  counsel  intending; 
t<i  piejiidiee  in  no  way  whatever  their  respective  <  iovernineiits 
in  the  above  matters. 

Kor  the  purposes  of  the  stipulation,  these  claim> 
are  sulmiitted  for  su<-h  action  as  the  ( 'ommissioneis 
may  fake:  and,  as  liearin;;  upon  the  positions  taken  in 
the  motion  to  dismiss,  atti'iitioii  is  invited  to  those 
parts  of  tliisaro-iiment  liearino-iipon  the  intt'i'pretation 
and  scope  of  the  Convention  on  the  ipiestion  of  juris- 
diction, and  also  to  the  facts  as  hereinafter  analv/.ed. 


Tlir  ( 'inolcHd,  Oiiiraril, mid  V  Imnifon. — It  is  snhmitted 
as  a  matter  of  law  on  the  facts  hereinafter  discussed 
in  relation  to  the  schooners  ('inolniii,  Tlmnitoti,  and 
(hiirani,  that  tlu'  respective  owners  of  those  vessels 
treated  the  acts  of  .seizure  as  constituting:  a  total  loss 


OHSEKVATIONS   Al'l'I.YlNO    UNI-Y    TO   CKKTAIN    CLAIMS.        15!» 


as  of  till'  dnt*'  of  tlic  s<My,ur«'s.  Ami  iiionMivcr,  in 
tliiit  fDiiiU'ctioii,  tlif  fiiiliin'  nf  tlu'  ofUcrrs  ot'  tlu-  dis- 
trict (•(dirt  of  Alaska  to  act  on  the  tcK-jirapliic  orders 
i'roni  tilt'  (fovcrnincnt  lor  the  release  of  these  vessels 
can  cut  no  tiffure  on  tliis  (jnestion,  as,  under  tlie  evi- 
dence, tile  acts  and  conduct  of  the  owners  show  that 
they  would  not  have  accepted  a  release  at  anv  time 
after  the  seizures. 

The  principle  to  he  applied  in  such  cases  is  this: 
That  a  tender  is  never  iiecessarv  to  he  shown  when 
it  appears  at  tlu?  trial  that  the  tender  would  not  have 
heeii  accepted  if  made.  -Ills  rtntiiiii  mm  r.iii/if;  .Ins 
mi/mim  mm  ni/iiiiit. 

Do.N"  M.   hU'KINSoN. 

KollKUT   Lansinij. 
ClIAKI.KS    H.    WaKBKN. 


ArrEMux  I. 

I'ONDENSKD   IMl(»TOC()L8. 

VofffHpontleiw  iirrlimiiiary  to  the  iiijiotiittion  uf  Ihf  ttratif  of 
Wimhiiifiton  nijitieil  Mni/  .v,  1H71, 


Sir  Kilirard  Thoi-ntoii  to  Mi\  Finli, 

WasiiiN(;t(»n,  ./«HHrt»7/  ;»6,  /n;/. 

Siu:  III  coi.ipliaiicn  wiMi  iin  iiistrnctioii  \vlii<'li  I  hiivo 
r«'c«M\i'(l  Iroin  Karl  (Jraiivill*',  I  liavo  tlie  limior  to  state  tliat 
llf'r  Majesty's  <ii>vernnu'iit»h'»Mn  it  ot'iiiiportaiiuetotlic  good 
rt'lations  wliicli  they  are  ever  anxious  HJioultl  subsist  ami 
be  streiijitlieiietl  between  tin-  I'niteil  Stales  anti  (Jreat 
Itritaiii,  that  a  trienilly  and  eoMii>let«  iiinlerstandin};  slionld 
be  coine  to  between  tlie  two  (■overiiinents  as  to  the  extent  of 
the  I'ifjhts  whieh  Itelon;;  to  the  citizens  ot  tlie  Hnites  States 
and  ller  Majesty's  siiltjects,  respectively,  with  rerereiice  to 
the  tisheries  on  the  coasts  of  ller  Majesty's  possessions  in 
>iorth  America,  and  as  to  any  other  f|iiestions  between  liieiii 
which  alVect  tiie  relations  of  the  I'liited  States  toward  those 
j)ossessions. 

As  the  conslderatiiMi  of  these  matters  would,  however,  in 
volve  investigations  of  a  sonunvhat  complicated  nature,  and 
ns  it  is  very  desirable  that  they  shoiihl  be  thoroughly  exam 
iiied,  I  am  directed  by  Lord  (iranvill«>  to  p'oposR  to  the  (lov 
ernment  ol'the  Tnited  States  the  appointni  >ntoi  a  Joint  lii;>li 
('omniissioii|Whicli  shall  be  com  posed  of  mei  .bers  ti>be  named 
by  each  (iovernment :  shall  hold  its  sessioub  at  Washington, 
aiid  shall  treat  of  and  discuss  the  mode  of  settling  the  dif 
ferent  •|iiestions  which  have  arisen  out  of  tfe  fisheries,  as 
well  as  all  those  which  alVect  the  relations  of  the  ''nited  States 
toward  ller  Mnjesty's  possessions  in  North  America, 

1  am  conlident  that  this  proposal  will  be  met  by  your 
(iovernment  in  the  same  cordial  spirit  of  friendslii|)  whicli 
has  induced  Her  Majesty's  <  iovernment  to  tender  it.  and  I 
can  not  doubt  that  in  that  case  the  result  will  not  fail  to 

Kill 


I 


(•oM)i;N8r,i»  I'Uorocoi.s 

(!uiitrilmte  to  Mu*  iiiiiiiitt'iiaiK't'  of  tlio  tnunl  ii-latioiis  lictwri-n 
tlu;  two  iMiiiiitrics.  wliirli  I  jiiii  coiix  iiict'i^  Mm-  (lovvriiiiieiil  nt 
the  Uiiiti'il  Stiitt's,  lis  well  as  tlinl  ol'  Ik-r  .Miijest.v.  oi|iiall.v 
liavc  at  In-art. 

I  liavi-  till' honor  to  l)c,  Willi  the  lii;;h(>sl  consideration,  sir, 
your  most  oln'iliciit.  liiiiiiWle  servant. 

I'iDWAKIl   TlKlKNTON. 

lion.  Hamilton  Kisii.  dv. 


161 


Mr.  h'ixh  ((I  Sir  l-jliriiril  TlmriitoH. 

DKI'AIITMKNT  Ol'  Statk, 

Wiixliiinjliiii,  •liiiiiiiirii  :i(i,  />/"'/. 

SiB;  1  have  the  honor  to  ackno\vh'(l;;e  the  reeeijit  of  your 
note  of  .lanuarv  -<>.  in  which  you  inform  inr.  in  eoinplianie 
with  insti'uetious  Ironi  l-Iaii  (Irainille.  that  Her  Majesiy's 
(iovernment  ileem  it  of  ini|Mn't'anee  to  the  uood  relations 
which  they  areevt-r  anxious  should  snl)>ist  and  be  strength- 
ened lietween  the  I  nited  8tates  anil  (heat  Itrilain,  that 
a  friendly  and  complete  ninlerstaudiii};  slioidd  he  eoiiie 
to  lietween  the  two  (lovernments  as  to  the  extent  of  the 
rights  which  lieloii;;  to  the  eiti/ens  of  the  I'liited  .states 
and  Her  Majesty's  suhjeets.  respectively,  with  retereiiee  to 
the  lisheiies  on  the  coast  of  Her  Majesty's  possessions  in 
North  America,  and  as  to  any  other  i|uestions  Itetween  them 
which  alteet  the  relations  of  the  Inited  States  toward  those 
possessions;  anil  further,  that  as  the  eonsideration  of  these 
ijuestion:  would  involve  inve.stij;ations  of  a  somewhat  com- 
plicated  i.atnre,  and  as  it  is  very  desiialile  that  they  should 
he  thoroughly  examined,  you  are  directed  by  Lord  (iranville 
to  projiose  to  the  (iovennneiit  of  the  I'nited  States  the 
appointment  of  a  Joint  lli<;li  Conimi.ssion,  which  shall  be 
composed  of  members  to  be  named  by  each  < iovernment. 
shall  hold  its  sessions  at  VVashin^fton.  and  shall  treat  of  and 
discuss  tlie  modeof  seltliii";  thedilVerent  i|uestions  thathave 
arisen  out  of  the  lisheries,  as  well  as  all  those  which  allect 
the  relations  of  the  I'nited  States  toward  Her  .Majesty's  jios 
sessions  in  North  America. 

i  have  laid  your  note  before  the  President,  who  instructs 
me  to  say  that  he  .shares  with  Her  Majesty's  (iovernment  the 
appreciation  of  the  imitortance  of  a  friendly  and  complete 
understandinK  between  the  two  (iovernments  with  relerence 
to  the  subjects  specially  suggested  fin-  the  consideration  of 
the  proposed  Joint  High  Commission,  and  he  fully  recog- 
nizes the  friendly  sjiirit  which  has  prompted  the  proposal. 


i 

I 


I; 


lb: 


('»tNi»i:N>i:n  i-mtnu  oLh. 


Tilt!  I'rt'sitlt'iit  is,  liowovcr.  of  tlu- opinion  tiiiit,  witiioiit  tlif 
iiil.jiistiiifiit  (it  a  class  of  <|ii«>stioiis  not  alladiMl  to  in  yom 
uoti>,  tilt'  |)ro|i<istMl  llii;li  ('oniiiiission  wonlil  fail  t<  estalilisli 
tiie  pt'iinani'iit  iclations  antl  tli«>  sinrtTf.  siiiistaiitial.  an<l 
lasting;  frifiiilsiiip  lictwciMi  tli<- two  (Mivcrnincnts  Mliit-li,  In 
(oininiin  with  llcr  Majesty's  (ioxfniiiuMit,  lit>  «i«'sir«'s  slioiihl 
pi'wail. 

lie  tiiinks  that  tia-  icnioval  of  tht-  tlint-rcncos  which  arose 
ilmin;:  tlic  rclicllion  in  llic  I'nitcil  States,  and  which  have 
t'Nisteil  siin'c  t lien.  ;;i'owin;r  out  of  the  aetH  coniiiiitteil  by 
the  several  vessels  which  have  ;;ivcn  rise  to  theclaiins  ;;eiieric- 
ally  known  as  the  ■■Alabama"  claims,  will  also  be  essential 
to  the  resloiatioii  ol  coi'ilial  anil  amicable  relations  between 
tlio  two  (ioveriiincnts.  He  ilirccls  me  to  say  that  slioiilil 
llcr  Majesty's  ( ioveriiiiM'iit  accept  this  \  iew  of  the  matter, 
ami  assent  that  this  subject  also  ma.\  be  treated  of  by  the 
Itroposeil  llip;li  Comiitission.  and  may  thus  be  put  in  tlie  way 
of  a  llnil  and  amicable  settlement,  this  (iovernnicnt  will, 
with  much  pleasure, appoint  IlitthComiiiissioiiersoii  the  part 
ol  the  I'liited  States,  to  meet  those  who  iiia,\  be  appoiiituil 
on  behalf  of  llor  Majesty's  (iovernment,  and  wil!  spare  no 
etlbits  to  secure,  at  the  earliest  practical  moment,  a  just  and 
amicable  arranp-meiit  of  all  the  questions  which  now  iinfor 
tiinately  stand  in  the  way  of  an  entire  and  abiding;  friend 
ship  between  the  two  nations. 

I  have  the  homa-  to  be.  with  the  iii^^hest  consideration,  sir, 
your  obedient  servant, 

Hamilton  Flsii. 

Sir  Kdwai.mi  Tiiorntox,  A'.  V.  />'.,  tie. 


iSir  /-'(hrurd  Tlioriitoii  to  Mr.  Finli. 

Washinutmx,  Frhriiari/  1,  Is;  I. 

Sir:  I  have  the  honor  to  acknowledge  the  leceipt  of  yoni 
note  of  the  '(Otii  ultimo  and  to  otfer  you  my  sincere  and 
cordial  thanks  for  the  friendly  and  conciliatory  spirit  which 
pervades  it. 

With  reference  to  that  part  of  it  in  which  you  state  that 
the  I'lesident  thinks  that  the  removal  of  tlie  ditfeieiices 
which  arose  during  the  rebellion  in  the  I'nited  States,  and 
which  have  existed  since  then,  growing  out  of  the  acts  com- 
mitted by  the  several  vessels  which  have  given  rise  to  the 
claims  generically  known  as  tin*  "Alabama"  claims,  will 
also  be  essential  to  the  restoration  of  cordial  and  amicable 


i^' 


I  oxiii:xsi;i»  I'UoKKui.s 

ivIatioiiH  lift  WITH  the  tvMi  (iiivcniiiiciits,  I  liitvi'  llio  liiiiinr  to 
iiit'iti'Mi  yiMi  tliiil  I  lisivc  •«iiliiiiilt<-<l  to  Kiitl  <irini\illf  \\u-. 
opitiioii  tliiiH  «>\)H'i-xsf<l  liy  til*'  rrrsitli-iit  of  tlit-  riiitcil 
Htiiti's,  III)'  l'rii'ii)lliiM-is  of  wliirli,  I  lir^;  .\'oii  to  liclicvc,  I  I'lillv 
ii|i|iri-riiitc. 

I  am  now  iiiitlioi'i/i'il  li.\  his  loiilsliiji  to  stiiit;  tliat  it  woiilil 
;riv<'  llcr.M^i.ii-st.v'HlioMTiiini'iit  ;;r)>sitsiitisltii'tioii irtliiM-laiiiiN 
coiiiiiioiily  known  ity  tli<- name  of  thi'  •' .\laliania"«'lainiH  nmtc 
siiUiniltt'il  to  till-  ronsiili'iation  of  tlic  sanu-  lliuli  Coruii.i.ssjiMi 
by  wliicli  Wvv  Majt'sty's  (lovcinnicnt  have  pioposcd  tinit  lln- 
i|M(>stion.s  ri'iatint;  to llii'  l:riti>li iiosKt'ssionM  in  North  Anionra 
•^lioiilil  l)c  (liscnsstMl.  |ii'o\'iihMl  that  all  other  ciaiiiis,  liotli  of 
ISritish  snliici'ts  and  citi/i'UMot'  thf  liiiti-d  States,  ari.''in|ront 
of  acts  foinniiltcd  dni'in;;  till' I'l-cfiil  civil  war  in  tills  count ly, 
art'  similarly  rclcrrcd  to  the  same  (Joininission.  Tlu'c\|»rcs- 
slons  made  iiscof  in  the  name  of  tiie  rresidcnt  in  your  above- 

nlioiicd    note,    with    i'e;;ard    to    the   '■Alaliama"   claims, 

convince  me  that  the  (lovernnient  of  the  Inited  states  will 
consider  it  of  importance  that  these  causes  of  dis|iiites 
between  the  two  countries  should  also,  and  at  the  same  time, 
lie  done  away  with,  and  that  .mhi  will  enable  me  to  convey  to 
my  (iovcrniiicnt  the  assent  of  the  I'resident  to  the  addition 
wiiicli  they  thus  propose  \o  the  duties  of  the  lli;;li  Coinmis 
sioii,  and  which  can  imt  fail  to  make  it  more  certain  that  its 
labors  will  lead  to  the  removal  of  all  dilfereiiees  between  the 
two  countries. 

I  have  the  honor  to  be.  with  thu  lii{;hest  consideration,  sir. 
your  most  obedient,  iiiimble  .servant. 

KllWAKll   TiKiUXTON. 
lion.   llAMIl.TdN     I'lSlI,  ((v. 


163 


Mr,  h'ish  til  Sir  hJihniril  Tlionilini, 

l»K,l'AI!TMKNT   Ol"   .•<TATK, 

Wnxhiiiiitnii,  h't'liriiiirii  ■'!.  I>^il. 
Sue  I  hiivuthe  honor  to  ackiiowled;;e  tlie  receipt  of  your 
note  of  the  1st  instant,  in  wliieli  you  inform  mo  that  you  arc 
authorized  by  Karl  (iranville  to  state  that  it  would  j;ive  Her 
Majesty's  (iovernment  ;;reat  satisfaction  if  the  claims  eom 
luoiily  known  by  the  iiiinie  of  the  ".Vlubama  eliiims,'' were 
submitted  to  thucoiiHideration  of  thesitnio  lligii  <'oniiiiission 
liy  which  Her  Majesty's  (iovernment  have  proposed  that  the 
questions  relating;  to  the  Mritish  possessions  in  North  Amer- 
ica should  be  discussed,  provided  that  all  other  claims,  both 
of  British  subjects  uiul  citizens  of  the  United  States,  arising; 


Ki-I 


(•itM>i;x>i;ii  I'KuitM  oi.s. 


nut  tiC  iM'ts  foiniiiittfil  tliiriii;;  tlu'   if-t-iit  civil  war   in  tlii> 
(■iMiMtrv.  art'  >iiiiil;ii'l,v  ictfirftl  to  tlic  saiiK*  ('(iiiiiiiissinii. 

'  liax'i-  liiiil  your  iiotc  Ik'I'imi'  tin*  I'l'i'siiltMii.  aiiil  Ik*  lia> 
il.i'i'clt'il  iiit<  fc(  ('\|iii's.-.  tilt'  salisrartion  with  wliicli  lie  lia- 
I'tTfivi'i)  the  iiilclli;;i-ii''<'  that  \'.uv\  tlraiivlllc  has  aiithiiri/.i'd 
\iMi  to  statr  that  llcr  .Maii'st\',s  (lovenimciit  han  aiccpttMl 
th*'  views  ot'  this  <o)V('i'iiiiii-iit  as  to  tiit'  ilis|Hisitioii  to  lie 
iiiaih-  oi'  tilt'  MO  caMtMl  '■  Ahiliaiiia  claiiiis," 

I  If  alsotlii('«'t>  111!'  to  >a,v.  wilii  rcrciciic*'  lo  tht-  I't'tiiaiiiili-r 
of  \oiir  note,  that  il'  liirio  In-  other  ami  ruither  elaiiiis  oi 
I'.iilish  --iiliicets  or  of  Aiiit'iicaii  eiti/eiis  ;;i'o\\  in;: out  ol'aels 
eoMiniiiteil  ijiiriii;;  the  recent  civil  wai'  in  this  comitiy.  \w 
as>«'nls  to  the  iiropiiely  oC  Ihcif  icleience  to  the  sann-  ili;;li 
Coiinnission :  lint  he  sii};;;esis  Ihaf  llie  llii;h  <'oin!nissi<)nei> 
hhall  consjilt'i'  only  such  claims  of  ihis  ilesciiption  as  may  be 
|ii'»'senlei|  hy  the  <  iovernincMls  of  the  lespeetive  claimants  al 
an  eail.N'  (la>  .  lo  lie  a;:reecl  n|ion  liy  the  ('ominissioiiers. 

I  have  till'  lioiioi'  to  lie,  with  '.he  lii;;lieMt  consiileration.  sir. 
you  olicilient  servant, 

Hamilton  Fish, 

Sir  ICdwakii  TiiuKN'j'oN,  A',  r.  /;..  ili. 


K.vtniil  I'liim  I'rulticiil  A'.V.VI'/  of  cuntmnrv  hilirim  tin 
Hii/li  Ciinniiissioiit  rs  tin  lliiiini'l  of  tlir  I'liiliil  Stiilrs  iitnl 
till   lliijh  ('ommiKx'nnivi'x  III!  tlif  jnirt  of  <hint  Itritaiii. 

Wasiiinhton,  Minj  /,  /^;/. 

The  Ili,  ('ommissjoners  liaviny:  met,  the  jifotocol  of  the 
coiifereiici-  held  on  the  .'><l  of  .May  was  leail  and  eonlirined. 

The  lii;;li  < 'oniinissioiierH  then  ])i'oceeded  with  the  eoiisid- 
eiation  of  the  nuitter.s  refeiied  to  Miein. 

The  statement  prepared  hy  the  Joint  protixMilists,  in  aeeord- 
anee  with  the  rei|iiust  ol  the  .loiiit  MiRli  Cnminissioiiers  at  the 
last  coiift'n'iice,  was  then  read,  as  follows: 

stati:mi:nts. 

AlMH  I.IOS    I    T(l    XI. 

At  the  tronfcreiiee  held  on  the  Sth  of  Marcli,  the  Amei lean 
<  'ornmissioners  stated  that  the  people  and  ( ioveriiineiit  of  the 
liiited  States  fell  that  they  had  sustained  a  ftreat  wroiiy:. 
and  that  ;;reat  injuries  and  losses  were  iiilli<'ted  upon  their 
commerce  and  their  iiiat(M'ial  interests  liy  the  course  and  coii 
duet  of  (ireat   Jtritiiin  during;  the   recent    reliellioii   in  the 


(•«iNhi;Nsi;ii    I'KitKH  ni,8. 


Kb 


I'liil*'*!  Siiitt's;  tliiit  wliiit  liinl  orruriril  in  (iri>iil  Itijiiiiii  ami 
lit'i'  I'oliMiifs  iliirin;^  (lia(  peiiotl  InkI  ;;iv<Mi  rise  to  li-i>liti;is  in 
til*' I  iiiti'd  Stall's  wliicli  til)'  |ic(i|i|i' III  till'  riiitnl  Stati-siliil 
not  (li'sirt- to  I'lici'isli  tiiwnril  tirriit  Itiitaiii;  tlmt  iln  liixiiiiii 
of  llir  AliiliiliiKi  mill  nihil-  rniisirs  irliiili  liinl  hiiii  lilliil  mil, 
or  iiriiiiil,  or  i'i|iii|i|i('il,  or  wjiji'li  liail  ri'rrisi'il  aii;:MM'iitii 
tiiiii  of  iDi'i't'  ill  tiri'at  liiitalii  or  in  li«>r  rolnnii's.  ami  hI'  tlii' 
o|M>i'atiiinH  ot'tliiisi'  vi'ssi'js,  slmwnl  rxtriisivi' iliri'i't  lo>st'siii 
tlii*  <'a|itiii°t'  anil  ilrstnirtioii  of  a  lar;:i'  iiiiiiilu'i'  ol'  vi'>.si'i.> 
with  tlit'ir  riir;iiu's.  anil  in  lln  linirii  niiliiiniil  i .ifiinililiifi s  in 
llir  imiHiiil  III  III!  iriiisiis  mill  iiiilinil  iiijiiiji  In  lln  Innixl'rr 
It/ II  liiiiir  piDl  of  lln  .\  nil  rirmi  iiiniini  iriiil  iiiai'iin  t<i  llir 
iiritisli  llay,  in  lln  i  nlniiniil  inninn  nin  nl'  insmiim  •  '..  lln  imi- 
liniiliiliiin  III'  lln-  nil)-,  iiinl  in  lln  iiilililinn  iil' ii  liiiiji-  >■  .n  In  lln 
rust  III'  tin  irnr  iinil  tin-  sniiini  ssinn  nf  lln  iilii  llinti ;  ,iuil  iilsii 
slioiriil  lliiil  Un-iil  llilliiin.  Iiii  rnisnn  ol  I'liilnii  in  ^In  inoiii'i 
ohsiiiiinii   ol'  In  I-  lln  Iil  s  ns  ii  iniiliill.  Iiail  lll'i'iH!'  '  jllstlv  liaMl' 

li)i  tlic  arts  III'  tlitiMMTuiM'is  iinil  ol  tlii'ir  t  '  •r.s;  tiiat  tin- 
riaiiiis  for  I  ill'  loss  anil  lii'stiiii'tioii  iit')ii'iviiti-  |ii'ii|ii'i't.'  \vlii<  I, 
!j;  I  tliiis  {'ill  hi'i'ii  |ii('si'nt<'il  aiiioiiiitt'il  toalioiit  liniiti'i  n  mil- 
lions III'  ilollars,  without  iiit<'i't>st,  wliirh  amount  wh-  lialili' 
to  b«<  nr«'ail,\  inrn'asi'il  Ity  i-laints  whii'h  iniil  inx  linMi  pri' 
si'nti'il;  tiiat  lln  rosl  /«  irliii-h  lln  ".ori-ninnnt  Innl  l-irn  /ml  in 
tin-  pni-snit  of  i-rnisi  rs  ronlil  itisilii  hi-  nsi-i-rttliiinl  hji  n  rl-'ii-nlis 
of  (lorrrnnnnl  iinonnlinii  o(fi,ii-K;  that  in  tlio  liopi-  of  an 
atnii'ahit'  si'ttlcnii'iil  no  I'stiiiiatr  was  imiili'  of  tlu>  iiKlircct 
losses,  withoiit  ini'jnilirc,  howi'vcr,  to  tlii'  ri^lit  to  imlcmnili- 
I'ation  on  tlit'ir  arrount  in  tlii' I'veiit  of  no  siit'li  si'ttli'iiiciit 
beiiif;  nmdi'. 

T\n'  Anicriraii  <'omniissioni'i's  fiirtlii'r  stati'il  that  tlu'.v 
hopi'il  tliiit  tilt'  Itritish  ('oiiiinissioneis  woulil  lieabh'  to  plaii- 
upon  rt'coril  an  fxpression  of  rt'fjri't  by  llt>r  Alaji'sty's  (Jov- 
I'l'iiini-nt  for  thetlt'inftiations  nimniittt'tl  by  tht'vcsst'ls  whose 
acts  were  now  niiilet  iliseiission.  Tliey  also  proposeil  that 
the  Joint  Ili^fli  (omniission  shonlil  a^ree  upon  a  sum  which 
slioiilil  be  paiil  iiy  (ireat  ISritaiii  to  the  Uniteil  States,  in 
siitisl'aetion  of  all  the  elainis  iiml  the  interest  thereon. 

'i'iie  KritishCommissionei's  replieil  that  ller  Majesty's dov- 
I'lnnient  eonhl  not  ailiiiit  that  tiieat  lliitaiii  hail  lailt'il  to 
(lisi'hai'^fo  tiiwani  the  L'niteil  States  the  ilnties  imposeil  on 
her  bv  the  rules  of  international  law.  or  thai  she  was  justly 


liable  to  inake  pioil  to  the  I'niteil  States  the  losses  iie<;a- 
sioneil  by  the  acts  of  tlie  ernisers  to  wliiili  the  .Vnierieaii 
i'oiiiiiiissioners  hail  referreil.  They  reminileil  the  Aiiieiieaii 
CoiiiiiiisHionei'H  that  sevei'iil  vessels,  snsiierteil  of  beiny  tie- 
si^jnt'il  to  eniise  a;;ainst  the  I'niteil  States,  iiieliiiliiif;  two 
iron  chills,  hail  been   anesteil   or  tietaineil    by  the   ISritisli 


i 


Ui6 


t'ONIiKNsr.I)    I'HOTlK'OLS. 


ml 


(iiiveninioiit,  mikI  that  tliat  ( iovt'i'iiinciit  li:i«l  in  si)iii<>  instaiici's 
not  «-(niliiH'(l  itscir  t»t  tlio  (liseliarjff  of  international  oblijja 
tions,  liowcviT  witlely  fonstrned,  as.  lor  instance,  wlien  it 
ac<|tiii'iMl  at  a  «;ri'at  cost  to  tin'  counti'.x'  llu'  control  of  tiic 
Aii;;Io  <'liint'sc  llotilla,  wliicli.  it  was  ai>iii'clii'n(UMi,  niiylit  he 
used  aj;ainst  the  liiited  States. 

They  added  tlitit  althon^^h  (iieat  ilritain  had.  from  the 
lu'flinnin;;'.  disavowed  any  resjionsihility  for  the  acts  of  the 
Alabama  and  the  other  vessels,  she  had  alieady  shown  liei 
willingness,  foi'  the  sake  of  the  niainteininee  of  iViemlly  fela- 
ti(Mis  with  the  I  Hi  ted  States,  to  adopt  the,  |>i  inciple  of  arbitia 
tioM,  iii'ovided  that  a  littinj;  arbitrator  conid  be  found,  and 
that  an  a};reeinent  could  be  come  to  as  to  the  points  to  which 
arl>itrati(m  sluinld  apply.  They  would,  therelore,  abstain 
from  replying'  in  detail  to  the  statement  of  the  American 
('oininissjoiu'rs,  in  the  hope  that  the  necessity  for  eiiterinj; 
upon  a  len>;thened  controversy  mijilit  Ih>  oltviated  by  the 
adoption  of  so  fair  a  mode  of  setlleuient  as  that  which  they 
were  instructed  to  jtropose:  ami  they  had  now  to  rcjieat,  on 
behall  of  their  (lovcrinnent,  the  olVer  of  arbitration. 

The  American  ('oinmissioners  exju'essed  tin-ir  rejii-et  at 
this  decisi(Ui  of  the  liritisli  coniinissioners.  ami  said  turther 
ilnit  they  could  m>t  consent  to  sulunit  the  (|Ui'stion  of  the 
liability  of  Her  Majesty's  (iovernment  to  arbitration  unless 
the  princii)les  which  slnuild  }i<>\ern  the  arbitrator  in  the 
consideration  of  tUv  facts  could  be  lirst  agreed  upon. 

The  Uritish  ('onimissifuiers  replied  that  they  Innl  m)  an 
thority  to  auree  to  a  submission  of  these  claims  to  an  arbi 
trator  with  instructions  as  to  the  principles  which  should 
pivern  him  in  the  consideration  of  theui.  They  said  that 
they  should  be  williii};'  to  consider  what  prim-iples  should  be 
adopted  for  observance  in  future,  but  that  they  were  of 
o])inion  that  the  best  nuide  of  (Mtiuluctin^  an  arbitration  was 
to  submit  the  facts  to  the  arbitrator,  ami  leave  him  free  to 
decide  upon  them  after  hearinj;  such  arguments  as  might  be 
necessary. 

The  AuH'rican  Cominissicuiers  replied  that  they  were  will 
ing  to  consider  what  principles  should  be  laid  down  Ibr 
observ  aiiee  in  similar  cases  in  future,  with  the  uinlerstainl- 
ing  that  any  jiriniuples  that  should  be  agieed  upon  should 
be  held  to  be  applii'able  to  the  facts  in  respect  to  the  "Ala 
bauni"'  claims. 

The  Hritish  Commissioners  replied  that  they  could  iu)t 
admit  that  there  had  been  any  violation  of  existing  j)rim'i- 
pies  of  interinitioiml  law,  and  that  their  instructions  did  not 
authorize  them  to  accede  to  a  proposal  for  layingdown  rules 
lor  the  fjuidaiu'e  of  the  arbitrator,  but  that  they  would  make 


t 


(DNIlKNSEIt    I'IfOTOt'dl.S. 

known  til  tlii'ii'  (iov«>rnnieiit  tlie  views  of  tlic  AuHTirnn  C'oni- 
inis.sion«Ms  on  tlii'  siibji'ct. 

At  till'  n'SiiectJNC  (onfcreiict's  on  .Miiicli  it.  March  10, 
Murcli  l-'l,  iiixl  Miircli  II.  tlic  .loint  lli^li  Coininissiini  coii- 
sidiM't'd  tlu'  lorni  ol'  tlu'  ilffliiiatioii  of  |ii'inci|il('s  or  rules 
wliicli  the  Anii'rii'iiM  Coniniissioiifi's  ik'sircd  to  st'o  adoptftl 
lor  tlK>  instruction  ol' the  arbitrator  and  laid  down  t'oi  nh 
servanc*'  by  the  two  (iovernin«>nts  in  future. 

At  the  «"iose  of  llu'  conference  of  the  llth  of  March  the 
liritish  Coiuinissiouers  reserved  several  ijuestions  for  the  con- 
sideration of  their  (ioverunient. 

At  the  confeience  on  the  oth  of  April  the  IWitishCoiuinia 
sioiuMs  stated  that  they  wen-  instructed  by  Her  Majesty's 
(iov«M'nnient  to  declare  that  Her  Majesty's  (iovernnieut  could 
not  assent  to  the  proposed  rules  as  a  statement  of  principle!! 
of  international  law  which  were  in  forceat  the  time  when  tlie 
Alabama  claims  arose,  but  that  Her  Majesty's  (io\erunienr.  in 
order  to  evince  its  tiesire  of  sirenfjlheniii}:'  the  friendly  rela- 
tions between  the  two  countries,  and  ol  inakiu};  satisfactory 
])rovision  for  the  future,  agreed  that  in  deciding;  the  ijUestions 
between  the  two  countries  arising  out  of  those  claims,  the 
arbitrator  should  assume  that  Her  Majesty's  (iovernnieut 
hail  undertaken  to  act  upon  the  ])rinci|des  set  fortii  in  the 
rules  which  the  American  Commissioners  had  proitosed.  vi/: 

That  a  neutral  government  is  Itoiind,  lirsl,  to  use  due  dili- 
gence to  prevent  the  tittin;;  out.  armin}!,  or  equipping,  within 
its  JHrisdiction,  of  any  vessel  which  it  has  reasonable  };round 
to  believe  is  intended  to  cruise  or  i-arry  on  war  against  a 
power  with  whiidi  it  is  at  peace;  and  also  to  use  like  diligence 
to  jirevont  the  departure  from  its  Jurisdiction  of  any  vessel 
iidended  to  cruise  or  carry  on  war  as  al)ove,  such  vessel  hav 
iwji  been  specially  adapted,  in  whole  or  in  part,  within  suidi 
Jurisdiction,  to  warlike  use. 

Secondly.  Not  to  permit  or  sulVer  either  belligerent  to 
make  use  of  its  ports  or  waters  as  the  base  of  inival  oiiera- 
tions  against  the  other,  or  for  the  purpose  ol  the  renewal  or 
augmentation  of  military  snpjilies  or  arms,  or  the  recrnit- 
nu'ut  of  men. 

Thirilly.  To  exercise  due  diligence  in  its  own  ports  or 
waters,  and  as  to  all  persons  within  its  jurisdiction,  to  ju'e- 
vent  any  violation  of  the  foregoing  obligations  and  duties. 

It  being  a  conilitioii  of  this  undertaking  that  jiese  obliga 
tions  should  in  future  be  held  to  be  binding  interinitionally 
lietwii-n  the  two  countries. 

It  was  also  settled  that  in  deciding  the  matters  submitted 
to  him  the  arbitrator  should  be  governed  by  the  foregoin 


Uu 


rule 


i  iiieh  li'id  Iteen  iigrced  iipiui  as  rides  to  be  taken  as 


168 


COXDKNSKll    l'R()TO(;(»l,S. 


ii|ipliciil)le  to  tlie  case,  iiiitl  liy  such  principles  ol'  iiiteriiiitidiial 
law.  nol  inconsistent  therewith,  as  tlie  ailiilrator  simnhl 
(letcrrnlne  to  have  been  applicable  to  the  case. 

The  Joint  lliyh  Commission  then  jiroceeded  toconsider  the 
form  of  submission  and  the  manner  of  constituting;  a  tribunal 
of  arbitration. 

At  the  conferences  on  the  (>th,  Stii.  i>th,  Kith,  ami  llitli  ol 
A])ril  tiie.loint  lli<>'li<  'omndssion  considered  and  di.scnssed  the 
form  of  submission,  the  manner  of  the  a^^ar<l,  and  tiie  mode 
of  selectiiij;'  the  arbitrators. 

The  American  ( 'onimissioners.  referi'iuf;'  to  the  hope  which 
they  had  exftressed  on  the  Sth  of  March,  inquired  whether 
the  Itritish  Commissioners  were  juepared  to  place  ujion 
record  an  expression  of  ren'rct  by  Her  .Majesty's  (iovern 
UH'nt  Ibr  the  deprc<hitions  committed  by  the  vessels  whose 
acts  were  nowniider  discussion  ;  and  the  Itritisii  (.'omndssinn 
ers  replied  that  they  were  authorized  toexpiess.  in  a  friendly 
spiiit.  the  I'cjjret  felt  by  Her  Maiesty's  (lovernment  for  the 
escape,  under  whate\er  circumstances,  of  the  AIiiIxviki  and 
other  vessels  fiom  Hritisli  jtorts,  and  for  the  <lcpre<lations 
committed  by  tliost^  vessels. 

The  AnuMiean  Commissioners  accei»te(l  this  expression  of 
rejfret  as  very  satisfactory  to  them,  ami  as  a  token  of  kind- 
ness, ami  said  that  they  felt  sure  it  wouhl  be  so  received  by 
the  (ioveriiment  and  people  of  the  I'nited  Stales. 

In  the  conference  on  the  l.'lth  of  April  the  treaty  Articles 
I  to  \1  were  agreed  to. 


Wi 


Appendix  II. 

TESTIMONY    BBARINO   ON    RESIDENCE  AND  CITIZEN- 
SHIP. 

Tlionias  //.  Coopn: 


t 


li'  l< 


$ 


This  is  found  in  his  (>\aiiiiiiiiti(»n:  He  was  l»oni  in  k.,  i836,  line 
J^ouUon,  LiUH'iishin',  En^iliUid  :  thnt  ht' l«'t't   l''"Jihnul  jj *'',';,.,- ^^^^ 
in  isr)4  and  came  to  New  York,  and  has  lived  in  the     itoo'i. 
Ignited  States  ever  sinee;   that  he  went  to  C'aht'urnia 
in  1S51',  since  whieh  time  he  lias  continuously  resided 
in  the  State  of  ( 'alifornia  :   that  he   is  a   iiritish  sub- 
ject, never  havin<>'  taken  out  naturalization  papers  in 
America. 

Warren,  testifvin<:'    relative   to  ( 'ooper's  residence 
(Record,  1140,  !t41),  said: 

(j.  lie  is  an  Ainerican  citixeii,  is  lie  not' 

A.  No. 

Q.  Lives  in  Wan  Francisco  f  H.,  yio,  Hue 

A.  Lives  in  San  Francisco.  67. 

t).  llow  lonj;  has  Cooper  lived  in  San  Francisco? 

A.  Well,  lie  luis  lived  there  a  nnniber  of  years. 

i}.  ile  has  lived  there  at)ont  twenty-live  years,  has  he  not  ? 

A.  I  think  likely. 

Q.  Now,  in  regard  to  Mr.  Cooper,  he  is  your  brother-in-  K.,  951,  line 
law,  is  he  not?  24. 

A.  Yes. 

(iJ.  lie  has  been  living  in  San  Francisco? 

A.  Yes. 

Q.  You  produced  the  other  day  a  power  oi'  attorney  ot'u.,  i2t(7,  line 
T.  H.  Cooper.    A  similar  <|uestion  was  asked  in  the  'riiorntoii,    «J5. 
but  not  in  the.se  cases.     Where  does  Cooper  live? 

A.  San  Francisco. 

Q.  llow  long  has  he  lived  tliere,  to  your  knowledge?    He 
is  your  brother  inlaw,  is  he  not  ? 

u  s 22  169 


':f.   m 


170 


TESTIMONY   ON    RKSIDENCK    AND   CTTIZENSlin'. 


A.  Vos.     I  <'X|)ect  it  iiiH8t  b«  getting  clime  on  thirty  years, 

Q.  Mo  yon  rtMneuiber  the  year  that  he  went  there? 

A.  No:  I  )lo  not,  exactly,  only  heariug  him  talk.  I  think 
it  must  have  been  pretty  near  thirty  years  ago  since  he  w«'nt 
there. 

^).  1  >nl  you  marry  his  sister,  or  he  yours  J 

A.  1  married  his  sister. 

<^.  Did  he  live  in  San  Francisco  when  you  were  married? 

A.  Yes. 

Q.  Now,  I  am  going  to  tind  cmt  how  h>ng  ago  you  were 
married,  <  'aptain. 

A.  187.!. 

Q.  Was  Cooper  then  living  in  San  FranciseoT 

A.  Yes. 

(j.  And  had  he  been  living  there  tor  .some  time? 

A.  Vo.s;  for  several  years. 

Aiidrnr  .1.  liirhlrl. 

'V\\('   jilHiliivit    «>t'   .Vmln-w  ,F.  Hcclitcl.  si^-iuMl   iiinl 
swoni  to  ill  the  city  of  N'ictoria,  on  tlw  (!tli  day  ot 
U.,  liMtMine.luly,  18  4,  was  read   into  tlio   IxN'cord  on  Ixdiidt'  of 
""•  tlic  Tnitcd  States: 

I.  Andrew  .1.  Hechtel.  of  the  city  of  Victoria,  in  the  Prov- 
ince of  Hritish  Columbia,  hotel  keeper,  make  oath  and  say 
as  follows: 

1st.  1  was  born  in  the  State  of  Ohio,  of  the  Tinted  States 
of  Am«Mi<!a,  and  1  am  the  brother  of  M.  N.  Hechtel,  deceased. 

%.t^Kx.No!      -^""'  "  t-ei'tilied  eopy  of  tlie  hil!  of  sale  conveyinji' 
4,     u.    y. to    Heclitel  the   Citji  <if  San    DUtfn,  together  with  an 
p.  49.        'artiihivit  inaile  1»\'  Meclitel  statinji' tliat  lu'  was  a  resi- 
dent   and  citizen  of   tlu'   I'nited    States   of  Anu'rica. 
'I'lie  atlidavit  is  as  foHoWs: 


fi 


District  ov  San  Francisco, 
I'ort  of  San  FmnciMo. 

I,  ,Iohn  A.  liechtel,  of  Auburn,  in  the  county  Placer  and 
State  of  California,  do  swear,  according  to  the  best  of  my 
knowledge  and  belief,  that  the  schooner  (tailed  the  6'i7i/  of 
San  IHi'Ho,  of  San  Francisco,  in  the  State  of  California,  is  of 
burden  4<i  and  ,'„"„  tons,  ami  was  built  at  San  Francisco,  in 
the  year  one  thousand  eight  hundred  and  eighty  one;  that 
I  am  a  citi/en  of  the  United  States;  that  my  present  usual 


TESTIMONY    ON    RKSIDENCE    AND   CITIZENSHIP.  171 

jilaco  of  resilience  or  abode  is  Auburn,  in  the  county  of 
Placer,  and  .State  of  California;  and  I  am  the  true  and 
sole  owner  of  the  said  schooner,  and  that  no  subject  or  citi- 
zen of  any  foreitrn  iwwer  is.  directly  or  indirectly,  by  way  of 
trust,  confidence,  or  otherwise,  interested  therein,  or  in  the 
profits  or  issues  tiieieof. 

•John  A.  Ueciitel. 

SubscrilK'd  and  sworn  to  tlio  9tli  dav  of  Febriiarv,  p»>'«  ^77 
1S!K»  (incorrectly   printed  in   the  Keeord   lS!t6,  Imt  ''^' 

was  clian^-efl.  by  stipulation,  in  the  lierord,  to  isfjo). 

Andrew  .].  H«-chtel  was  called  on  behalf  of  Great B.,W5, line i. 
Hritain  : 

Q.  Where  do  you  reside,  Mr.  Mechtel! 

A.  In  Victoria. 

Q.  How  long  have  you  resided  in  Victoria? 

A.  About  twenty  three  years. 

<^  I  believe  you  are  nuirried  and  settled  down  here  ? 

A.  Yes. 

i}.  And  have  a  family  here  ? 

A.  Yes. 

if.  Au<l  this  has  been  your  home  for  the  last  twenty-three 
years  ? 

A.   Yes. 

<i».  What  l»u8iuess  are  you  now  in! 

A.  In  the  sealing  business. 

Q.  How  long  have  you  been  engaged  in  the  sealing  busi- 
ness— about  how  long? 

A.  I  can't  sa.\  exactly  as  to  months — over  three  years. 

Q.  About  three  years,  you  mean  ? 

A.  About  three  years — longer. 

Q.  What  was  your  I)usine8s  before  that? 

A.  Hotel  business. 

Q.  What  was  the  !iame  of  the  hotel  ? 

A.  I  have  kept  diflerent  hotels. 

Q.  You  were  a  hotel  keeper  in  Victoria  for  how  many  vears  f 

A.  For  about  eighteen. 


R.,  206,  line 
66. 


lie  was  recjdled,  but  no  testimony  was  ffiveu  re 
latiiig-  to  his  residence  or  possessions' in  Vict(tria. 

On  oross-exaniiiiation:  K.,  150 

Q.  Did  you  have  any  stores  or  buildings  there  from  which 
you  received  rent  f 
A.  I  had  some  cottages. 


172 


TK8TIMONY    ON    KESIDKNCK   AM»   CITIZENSHIP. 


B..  ;«•;{, 

87. 


n.,  ;«•!•, 

31. 


K.,  Idfflt, 
U. 


B.,  IS'.iO, 
00. 


Hue      Jicclitcl  was  rccallcMl  for  cross-cxiiiiiiiiiitioii,  Imt  no 

te.stiiiioiiy   was  ;>iv«'ii  lt»'ariii<>;  upon  liis  resident*'  in 

Victoria  or  elsewhere. 

l{('r('iTin<>-  to  the  rejiistcr  ot"  tlic   ('it// nf  Sati  /Hcf/ti 

at  tlic  port  of"  San   Francisco,  the  Conunissioncr  on 
'i»''tiu'  part  of  tlic   I'nitcd  States  said:   "That  is  not  a 

mere  declaration  of  citi/.en.ship,   Init  it   is  an  act  of 

citizenship  on  his  part." 
'■'"'      William  Mnnsie.  on  cr<»ss-examination: 

if.  Tlieii  yon  Ixiaylit  tlic  Sitii  IHii/o  lor  liiiii,  diil  you  J 
A.  XN'cll.  lie  really  i)oiiy;lit  licr.  hut  it  was  left  to  us  to  do 
the  business.     1  believe  his  boy  was  ill  ut  the  time,  anU  he 
was  liviii^r  ill  Ciilit'oriiia.     His  iiistruetioiis  to  us  were  to  l>uy 
the  vessel  lor  liini. 

•'»«  Tile  naturalization  papers  of  Hcchtel  when  he 
liecaine  a  suliject  of  ( Jreat  Ih'itaiu  were  filed  as  an 
cxhiltit  and  marked  Kxliil)it  No.  I'iS.  (J.  |{.  claim 
No.  1.      if.Mord,  1!)S!),  liui'  04.     (Kxliil.it,  p.  401.) 


Oath  iif  allvgiHHve. 

I,  .loliii  Andrew  lieelitel,  better  known  as  Andrew  .1. 
Heehtel,  do  swear  that  in  the  imm-IcmI  of  ei;;hteen  yeiir.s  pre- 
eediufj;  thi.s  date  I  have  resided  eijihteeii  years  in  the 
Dominion  of  ('anada  with  intention  to  aettle  therein,  with 
out  liaviii};  been  during  aueh  eighteen  years  a  stated  resi- 
dent of  any  foreign  country.    iSo  help  me  God. 

John  Andbkw  Lechtkl. 

Subscribed  and  sworn  to  the  7th  day  of  April,  18!>2. 


The  certificate  of  natur.dization  recites  in  terms 
that  Hcchtel  "has  duly  resided  in  ("anada  for  a  period 
of  eiohteen  years."  The  riiit«'d  States  (daim  liechtel 
to  have  been  half  owner  of  fV/ro/c^^mt  time  of  seizure 
Au^iust  1,  iSSfi,  half  owner  of  I'tith finder  at  time  of 
seizure,  dulv  211,  ISSK,  and  half  owner  of  J'titlijindrr 
at  time  of  '"'seizure,"  .March  2!l,  iSiKl. 


TESTIMONY    ON    RESIUENCK   AND   crnZKNSIlIK 
JhinirlMr/j(iH. 


173 


It  is  ill  «'vi<l«'iic('  tliiit  lie  Im'cjiihc  a  iiiitiinili/cil  citi- '•"•,  i^''  "•  '^• 
zcii  <tt'  tlu'  riiitftl  States  of  America  on  tlic  1st  dav  Ex./p.'anit. 

of    Dt'Ct'lllluM-.    1HS2. 

On  llic  Kith  of  Octohcr,   lSS(i.  tlic   I'liitcd  States  "•>„"•'"• '"'« 
not  liavinji' consented,  .McLean  took  niit  papers  deelar- 
in<i'  iiiin  to  lie  a  natnrali/.e(|  citizen  ot(Jreat  Mritaiii. 

On  the  7th  (hiy  of  Septeiiilier,  lS!f_>,  he  nia(h'  an  " .:„"*-^- ""* 
allifhivit  in  the  city  of   San   Francisco,  in  which  he 
states  that  he  was  a  natnralizetl  American  citizen  and 
tliat  he  resi(h'il  in  San  Francisco. 

On  tlie  Sth  (hiy  of  Anj-iist,  iSSi),  la-  ma(h-  an  aili- 
(hivit  iit  \'ictoria,  ndatiiiji-  to  tlie  chiim  for  tlie  seizure 
of  tlie  'I'liiiiiiiili  .(II  the  1  Ith  flay  <»f  .Inly,  ISHIt,  hy  the 
I'liited  States  rexcniie  cutter  in  Heriii":'  Sea. 

That  I  am  master  and  part  owner  of  the  Mritish  aoliooner 
7V/«w(/>//,re}jist»M«Ml  at  tlie  i»ort  of  Victoria,  Iliitish  Columbia. 

Hi',  makes  no  statement  as  to  his  residence. 
On  the  'iOtli  of  Octolier,  i>aiiiel    .McLean  made  an  H...!''^''' "'"' 
alfidavit  in  which  he  states  as  follows: 

1,  the  nmleisigned,  Daniel  McLean,  of  the  city  of  Nictoiia, 
ill  the  rroviiu'cot  HritishColunihia,  Canada,  master  mariner, 
declare  as  follows: 

I  am  a  natnral-horn  British  subject,  born  at  Sidney,  Cajte 
Breton,  in  the  Province  of  Nova  Scotia,  and  since  I  took  the 
oath  of  alk'ffiance  to  a  foreign  State — United  States — Novem- 
ber, ISTJt,  I  did,  on  the  Kith  day  of  October,  1S8(J,  take  the 
oath  of  allegiance  to  Her  Majesty. 

On  the  Kith  day  of  Noveinlier,  1S87,  McLean 
niaih'  atHdavit  at  the  port  of  Halifax,  Nova  Scotia,  to 
olitain  the  re<>ister  of  the  I'liiiHipli  in  his  name,  lie 
said: 

T,  the  uiiderHigned,  Daniel  McLean,  of  Victoria,  Mritish 
Columbia,  declare  as  follows: 

I  am  a  natural  born  British  subject,  born  at  Sydney,  iu 
the  county  of  Cape  Breton,  and  have  never  taken'the  oath 
of  allegiance  to  any  foreign  State. 


a:t. 


174 


TESTIMONY   ON    RESIDKNCE    AND   CITIZENBHIP. 


^'s  cTn'  3-      ''""'^'1  Mcl.t'aii  WHS  ((wiierof  «)iio-tliir(l  of  Triumph 
Ex.7(i.      'at  time  <»t'  si'iziire,  .lulv  11,  1><81>. 


Alr.idndcr  MiLiaii. 


He   ln'came  a  nntiii"aliz<;(l    citi/.cii  of  the   United 
JStates  by  order  of  tlie  circuit  court  of  the  United 
States,  district   of  Massachusetts,  on  the  1st  day  of 
December,  188-J. 
j{  gj,,,  He  saiK'd  out  of  tiie  port  of  San  Francisco  on  the 

Mtnji  Ellen  in  the  vear  1883,  and  was  en^iafied  as 
master  of  the  Fdnmiitr  at  Victoria  in  the  vear 
1S84. 

There  is  no  testimony  in  the  Hecord  that  Ah'xan- 

«     ....    1.     der   McLean   ever  owned    anv   i)roi)ert\',  outsid(>   of 
K.,  4:il,  line  ,  .         ,  .  •,..'..'.•        ir 

ti3.  vessel   property,  in  the  city  ot   \  ictoria.      lie  never 

had  a  permanent  resith'uce  there. 

Alexander  McLean  testified  on  cross-examination: 

(i>.  And  where  did  you  go  to  then;  did  you  live  here? 
A.  I  lived  here  (in  Victoria) from  1884  until  I88{l,and  being 
back  and  forward  between  here  and  San  Francisco  at  times. 

The  slii|)s  in  the  claims  in  which  McLean  is  inter- 
ested were  tiie  Otiininl,  seized  on  the  2d  day  of 
Anjiust.  1S8(>,  and  the  FaroKrilc,  warned  from  Herinj'' 
Sea  Au<iust  2,  ls8(i. 

« 

Alf.iattdt'f  Frank. 

Exi.  P.  '207-      Alexander  Frank  made  an  attidavit  on  the  1st  day 
39-  of  Feltruary,  188S,  iu  the  «'ity  of  Victoria,  in  which  he 

said  he  was  an  "American  subject." 

Lx.  20f»,  line        /(/,/,  i-         ,^  i  xi;  i       -^  ^i 

28.  (t.  (t.  (iwvnn.  Ins  attorney,  made  aihdavit  on  the 

1st  day  of  February,  1S8S,  that  he  was  informed  and 
verily  believed  that  Alexander  Frank  was  an  Ameri- 
can subject. 


TKSTIMONV    ON    RKSIUK.VCK    AND   CITI/KNSHIP.  17.') 

AlcxiiiKU'i'  Friiiik  (('Stifled  on  tliis  .second:  K.,i9!»4. 

Q.  You  ar»^  iiii  Aiiicricaii  citizen  ? 
A.  I  aiii,  sir. 

Frank  swore  tluit  nt  tlie  time  that  the  Lihi  and  the '^i^f""".  "ne 
lilnci;  lUdiiioiitl  were  rejiistered  in  the  name  of  Morris 
.M(»ss  (wliicli  (htte  is  Nov<-mIier    10,   188S),  '-that  he 
was  an  American  citizen." 

The  Hecord  discloses  the  tact  that  Frank  liad  l)nsi- W.,  hhki,  line 
ness  in  San    Francisco  aliont  the  time  of  the  .seizure    ''"■ 
of  the    /.////  and   the   li/ttrl,-   /Honioiid,  .lnl\-  and   Au- 
gust, 18S!  I. 

The  witness  was  asked: 


Q.  la  November,  ISS.s,  were  you  a  residcut  of  Vi(!toria? 

A.  I  believe  1  wa.s.  1  am  not  <|Mite  po.sitivc  about  the 
time.  I  went  to  San  I'raueisco  either  the  hitter  part  of  1.S88 
or  tlie  early  part  of  i«,S!t,  and  I  stayed  tiiere  Ibi'  .several 
months. 

().  Vou  had  a  biisiiics.s  in  N'ictoiia? 

A.  I  was  liquidatiii;;  my  business  in  N'ictoria. 

<^  Had  you  started  in  the  new  business  in  San  Fran- 
cisco? 

A.  I  becamea  partner  in  issit— the  1st  of  .lanuiuy.  1  think, 
liSS!>or  IS'.K).  I  ilo  not  know  the  date  exactly,  it  was  not 
a  new  business,  but  an  old  e.stablished  business. 

Q.  And  you  have  been  at  it  ever  since  ? 

A.  1  have  been  at  it  ever  since. 

(iJ.  And  you  can  not  lix  the  date  when  you  left  Victoria  for 
San  Francisco.  I  do  not  mean  to  s.iy  without  returniufj 
occasionally  here? 

A.  1  returned  oH'  and  on  here  for  a  nuiaber  of  years. 

Q.  Returned  for  how  lonjj ! 

A.  Oh.  for  a  week,  or  two  weeks,  or  a  month  at  times. 

i}.  ("ould  you  state  approximately  the  date  when  this 
business  or  store  which  had  been  carried  on  in  the  name  of 
Gutman  &  Frank  was  closed? 

A.  I  could  not. 

The  only  other  evidence  in  the  Wecord  hearino- upon 
the  (htmieile  of  .\h'xaiuler  Frank  is  in  his  aHidavit, 
printed  on  paye  210  of  I'.xhihits,  which  was  made  on 


){..  I'Mi,  liiiti 
"jO. 


\ 


I 


176  TESTIMONY    ON    RESIDKNCE   AND   CITI/EN8HIP. 

the  Ist  (lay  of  November,  1H87,  at  Victoria.    IIo 
said : 

For  two  years  and  upwards  oue  Jacob  Uutiiiaii  had,  until 
the  date  of  hiH  supposed  death  hereinafter  mentioned,  been 
in  partnership  with  uie  in  a  trade  or  business  carried  on  by 
us  at  cTohnson  street,  in  the  said  city  of  Victoria,  trading; 
under  tlic  name  or  style  of  (iutman  t^  Frank,  as  merchants 
and  Indian  traders. 

Till'  vt'ssels  in  wliit-li  Alexander  Frank  is  interested 
as  a  elainiant  are  the  Alfred  Adams,  seized  on  the  Kith 
of  duly,  18><7,  and  tlu^  lilmk  IHamoiitl,  seized  July  11, 
l8K!t,  and  the  Libi,  seized  August  G,  1881). 


UNCERTAIN   CHARACTER  OP  SEAL  HUNTING. 

Till-  iiictlioil  tor  n.iii|Mitiii;-'  iiii  cstiiiiiitcd  »-jitcii, 
|»ru|M.s(M|  in  tli«'o|i|M>siiiM  ArjiUiiM-iit, fakes  iiitoiiccuiiiif 
iiniic  t>{'  tile  roiitiii;>«'iMi«'s  which  |»n'V»'iit  the  ii|»|tli«'ii- 
tinii  (it"  jiny  rule  for  ciilciiliifiiij:  tln'  pnihiihh'  results  of 
ii  sciiliii^i'  \<t\ji;ie. 

'I'he  Jitteiitioii  <it'  the  llij^li  ( 'oiimiissioiiers  is  ciilh-d 
to  the  stiiteiiieiits  of  lhu\'u-\  Mcl.ejili,  f/ir  iiKisttr  nf  tlir 
Miiifi  Kill II  ill  Issc,  tlie  u|ieriitioiis  of  which  \u  tliiil 
linir  !ire  seh-cted  l»y  tlie  cliiiinaiits  as  showiii;;'  tlu- 
usual  siu'«'ess  of  a  sealiiit;'  schooner.  Me  savs  in  his 
<le|i()sition.  which  appears  in  tlie  IfeconI  : 

Sialiiin  "  iiiiiu>r.—T\\i'  coiiditioiis  liir  a  successful  catch  K.,  ikl'l',  liin' 
iue  so  iiiaiiy  tluit  wiiilc  ouc  vessel  inay  take  a  great  iiiauy,  •^■ 
aiiotlier  with  e(|ually  as  lar;;e  a  crew  may  secure  only  a  small 
iiunilier.  Ii  ..'<niiies  e.\i)erience.  a  cuielul  study  of  tiie  habits 
of  the  seal,  anil  a  thoiouffh  knowledfje  of  their  route  of  travel 
alony:  the  coast  to  Kerin};  Sea  to  secine  a  good  catch.  I  have 
known  vessels  to  leave  port  on  the  same  day  that  I  did,  with 
the  same  number  of  crew  and  boats,  and  at  the  end  of  the 
season  I  had  abont  two  skins  to  their  one. 

it  is  the  purpose  of  this  |iortion  of  tlie  ar;>uinent  to 
lirieHy  review  the  principal  features  of  seal  huntin<;' 
and  point  out  more  in  detail  the  coiitin^iencies  and 
coinlitions  olttainin;^  wliicli  renio\e  it  from  the  tield 
of  safe  investment  and  surround  it  with  the  elements 
of  <'liance. 

Sealing;-  as  carried  on  in  the  years  from  ISSC  to 
ISIIO,  from  the  ports  of  Victoria  and  San  Francisco, 
was  necessarily  hazanlous  and  uncertain.  The  ves- 
sels emi»loyed  were  usually  small  second-hand 
schooners  ran<:iu;«'  from  1">  "to  l-J")  tons  hurthen, 
n  s ua  177 


;=J 


17H 


IJNCKKTAIN   CHAKACTKH    OK    SEAL    HUNTINd. 


U.,|iiftti. 


t)ii>ii<rli  tlu<  onliiiiiiy  siy.«'  wiis  Ix'twtM'ii  ."»(l  jiihI  ItM) 
tons. 

The  <lim;i«'rs  iittciulinif  upon  llir  voy.i;i«'  of  1,5(10 
miU's  to  lU'iiii;:'  S»'ii,  wliicli  usually  occiipitMl  I'loiii 
t'ourtt't'ii  to  twt'iity  ilfiys,  aixl  tliosc  tliiit  sinTouixltMl 
tlu'  o|H'riitions  ill  tlic  scii.  toi^ctlicr  with  tin'  iiiiccr- 
taiiity  <>t'  itrolit.  never  imliinMl  capital  to  invest  lar;iely 
lini':»in  tile  iiKliistry.  'I'lie  perils  ol"  a  Herinji'  Sea  eniise 
were  reeoji'iiizetl  l»y  insurers  in  an  inerease  ctf  tlie 
preiiiiuin  ret|iiire(|  tor  vessels  eleariii;;'  tor  Alaskan 
waters,  while  the  speculative  character  ot"  the  occu- 
pation is  shown  l»\  tln'  class  ut  \essels  eii^i'a^i'ed  in  it. 
ami  also  lt\  the  niinilter  ot  sealers  who  were  eiiiployetj 
upon  a  "lay:"  that  is,  an  allowance  ot'  a  certain  |ier 
cent  of  the  niiiiilier  of  skins  seciireil  in  lieu  of  wa;;'es. 
the  crew  thus  eiiteriiiji'  into  the  speculation  nf  the 
owner. 

These  small  schooners,  leavinji  port  of  N'ictoria 
in  Ajiril.  .May.  or  .Fiine,  ina<le  tlu  j.  way  northward 
aloiiji'  the  western  coast  of  Hritish  Coliiinliia  ami 
Alaska  or  l»y  direct  course  across  the  ocean  to  Ijiiinuik 
I'ass.  tlie  nearest  entrance  to  {{eriii;:'  Sea.  The  ves- 
sels carried  eilher  white  or  Indian  hunters,  the  iiiajor- 
itv  havin;>'  the  latter,  in  the  vears  from  IHSlI  to  ISSll. 
The  Itoats  used  i)\'  the  whites  each  contained  a 
hunter  armed  with  ii  shot^iun  or  ritle.  ..i'  hoth.  a 
"lioat  puller,"  and  a  "l»oat  steerer,"  tlie  latter  acting.;' 
in  the  i-apacity  of  another  oarsman  when  not  approach- 
in^i'  a  seal.  When  canoes  were  employed,  each  was 
manned  liv  two  Indiiins,  one  to  paddle  and  the  other 
to  strike  tlie  animal  with  a  castin;''  spear.  It  is  ap- 
parent tliat  wlieii  searcliinji-  tor  seals  a  l>oat  iiad  a 
jfreat  advantage  over  a  canoe  or  a  hoat  with  hut  one 
oarsman,  as  it  po.ssessed  twice  the  propellin*;'  power 
of  the  latter. 

When  the  weather  had  become  siifliciently  moili- 
tied,  Ji  ve.ssel  with  white  iiunters  lowered  its  iioats. 


IINCKKTAIN    CIIAUACTKH    OK    sI'.AI.    Hir*"nN(». 


179 


wliicli  tiiok  tlu'ir  ruiirsc  to  tlic  wiinlwmd.  flic  I iiiiitcrs  "■""'*•  "'"^ 
kccpiii;^  II  Hlitii-|i  liiolxoiit  tor  tliciiiiiiiiiils, 1111(1. soiiu'tiiiii-s 
^idiii^'  lOor  1;')  iiiiK's  in  tlicir  scnicli.  tor  tin-  lioiits  arc 
ottcii  IowciimI  wIu'II  no  scnls  iirc  in  si^lit.     When  ii  sciil 
\vii«  s<'('n,iiiii<-li  ilc|K'niliMl  upon  ilic  liinitcr'sfxiicricncf 


and  skii 


C 


iiptiiin 


M.L 


i-iin  in  his  cxiiniiniition  was  as 


kcil 


as  u 


\Xl   liii<< 


to  tlic  |iro|»('r  wax  of  a|i|»roarliin;i'  a  seal,  ll«-  ri'iilicil, 
"'riiiit  <l»'|)cn<ls  on  till'  action  ot'  tlic  seal  at  tliv  tiiiii-. 
All  seals  ilo  not  act  alike.  Some  Imnters  can  tell 
how  to  approach  the  seal:  they  can  tell,  when  the\ 
see  him  a  certain  ilistance  olV,  whether  thev  arej^oin;'' 
to  lii't  near  to  him  iind  shoot  him:  tell  liv  his  actions 
whether  Ik*  is  asleep  or  awake."  1 1'  the  seal  appeareil 
to  he  awake,  the  hunter  used  his  ritle  at  a  ran^ic  of  (id 
to  lOOya-'ds.  The  shotyiin  was  ;;eneriill\  used  when 
the  aniiiitil  was  asleep,  and  could  lie  more  lU'iirly  ap- 
proached, ff  the  shot  was  successt'ul,  the  lon^i-han- 
dled  <;atV  «"irried  in  the  lioal  was  used  in  an  endea\<ii' 
to  secure  the  rapidly  sinkin^i'  ln>dv.  If  not  killed 
outri;;ht,  the  liunler  coiitinue<l  tirin;:',  iu  s<ime  in- 
stances a  dozen  shots  hein^i  lired  at  a  "cripple,"  which 
t'voutually  was  lost.  'i'hr<»u»;li  some  peculiar  instinct, 
Aw  animal  when  woundecl  starts  directlv  to  the  wind- 
ward. In  the  pursuit  of  a  crippled  seal,  the  advan- 
ta;i-e  which  a  lioat  with  two  "pullers"  had  over  a  canoe 
with  but  one  is  apparent. 

If  the  schooner  carried  Indian  hunt«'rs  and  canoes 
instead  of  lioats,  the  method  of  hunting;'  was  diH'erent. 
Instead  of  always  proceedin;;'  to  the  windward,  the 


i\m 


canoes  went  m  diftereut  du'ection.s,  s«'ldom  ( 


•xteufl 


their  operations  over  three  or   four  miles   from   tl 
schooner.      It  is  tirst  to  lie  noted,  therefore,  that  the 


Ulli' 


le 


d  1 


area  covered  liy  a  vessel  manned  with  canoes  was 
much  more  limited  than  when  litiats  with  white  hunt- 
ers wen  employed.  As  .soon  as  a  seal  was  siiihtfd, 
and  it  was  determined  that  he  was  asleep,  the  canoe, 


180 


UNCERTAIN   CHARACTER   OF   SEAL    HUNTING. 


u 


if  to  tlio  winclwiinl  of  the  animal,  ciirU'tl  about  and 
atteni}H'(l  to  apin'oacli  him  from  the  lee.  If  su(•(•es^sful, 
the  seal  not  a\vakin<i',  the  spear  was  east  when  the 
boat  was  within  '2b  or  30  feet.  If  snflieiently  skillful 
to  strike  the  small,  movin<i'  mark,  the  animal  was 
drawn  to  the  canoe  by  means  of  a  cord  attached  to 
tile  sj)earhead.  If,  however, the  animal  wasawakened 
by  tile  approach  of  the  canoe,  there  was  little  proba- 
Itility  of  his  bein^'  secured,  as  he  would  swim  away 
at  a  rate  of  >peed  whicii  precluded  pursuit. 

From  the  diH'ereiit  way  in  wiiiidi  canoes  and  boats 
start'.'<l  out,  it  is  apparent  that  l»oats  would  iiave  an 
advantage,  as  the  seal  has  an  acute  sense  of  smell,  and 

.,  .->:«»,  limscan  detect  the  presence  of  a  iiunter  at  a  distance  of 
tiiree  or  four  iiuudreil  yards  A  canoe  with  Indian 
iiunters  was  at  a  further  ilisadvanta<>'e  liecause  the 
seals  taken  l)v  it  were  necessarily  "sleepers,"  as 
tile  use  of  tile  spear  necessitated  a  close  approacii  to 
insure  a  successful  cast. 

The  I  ndianswiio came  from  triliesalonii' the  west  coast 
of  Vancouver  Island  were  ifi'iioraiit  and  su])erstitious. 
Several  instances  appear  in  the  Record  (wiiicli  wiii 
lie  i^iveii  more  in  detail  iiereafter)  wiiere  a  sealinji' 
voyaji'e  was  brou<>ht  to  an  aiirupt  end  throuiili  some 
'''Ysu]ierstition  or  i^^norant  fancy  of  the  Indian  iiunters 
Udi  arisin;.;'  from  the  sickness  of  one  of  their  numlier.  tiie 

ii("r)'"'iiiiV.'"'"*  of  a  canoe,  a  proioiiji'ed  season  of  rou<iii  weatiier. 

r>'j;  '    7.">7.  tile  stuiiliorn  determination  t(»  return  iioiiie,  or  some 

Tie"  i  i  ii'i'"^''^''"  <'!'iii^t'  wliicii  only  the  Indians  tiiemseives  could 

37.  explain. 

Anotiier  peculiarity  of  tiie  Indian  hunters  was  tiiat 
K.,  3ns,  liii,.  rliey  were  unwiliiiiii'  to  start  seaiiii<>'  when  tiiere  was 

-2.  fo^iuy  weatiier.      As  foys  are  so  freipient  in    Merinji' 

Sea,  it  is  apparent  tiiat  tiiis  fear  or  superstition  of  tiie 
Imlians  must  have  teiideil  to  L;reatly  modify  tiieir 
etHcieiicy  ami  to  reduce  their  value  as  seal  Iiunters 
when  compared  with  white  men. 


|{.,  3(17, 
10; 
line 


*; 


m 


■«W<pil 


UNCERTAIN    CHARACTER   OF    SKAL   HUNTING. 


181 


It"  tile  conteiitioii  niiulc  on  the  part  of  (ireat  Hritaiii 
is  true,  that  the  locality  of  seals  at  sea  was  limited 
to  a  I'omparatively  small  area,  another  important 
continji'encv  is  that  canoes  and  boats  from  another 
schooner  caused  the  seals  to  become  wild  and  diiHcult 
of  approach.  The  variations  which  are  su<;<iested  by 
the  tendency  of  the  animals  to  be  disturbed  by  the 
presence  of  a  number  of  hunters  in  the  vicinity  cause 
the  problem  of  determininji'  the  chances  of  securing 
seals  still  more  invtdved  and  <litHcult  of  solution. 

The  fore^oinji'  review  of  the  methods  adopted  l»yl':  •*'*'.  l''>e 
white  an<l  Indian  hunters,  respectively,  has  l)een 
l)ased  on  the  assumption  that  ihey  found  seals.  If, 
howevi'r,  their  .search  was  unsucce.ssful,  they  returned 
to  the  schooner,  and  a  new  locality  2(1,  oO,  or  100 
miles  away  was  soti^ht  and  the  hunters  aji'ain  sent  out. 

It  is  evident  from  the  hazard  which  obtaineil  iuCii»i>i)f  r.  s. 
si-ahnji'  and  tlie  smallne.ss  ot  the  l)»»ats  and  canoes  voi.j, p.iio. 
used  that  the  weather  lu'came  an  important  factor  in  }^'""J"or 
ileterminiiifi'  the  success  or  failure  of  the  voyajie.  <'•  it.  Am. 
There  is,  perhaps,  no  body  of  water  on  the  face  of  s.^Khn."  ' 
the  ulobe  where  the  meteorolooical  conditions  are 
more  unfavorable  for  fair  weather  than   Merinji'  Sea. 

Foys  were  of  dailv  occurrence,  and   often,   as  is  n.,  n;n.  lino 
.stated  by  ('aptain  Meyer,  the  forenoon  mi<iht  be  clear    log^^^ol)!!" 
and  favorable  for  hulitinj;',  while  the  afternoon  iH-ouji'lit    '"    e  v  i  - 
a  foi>'  so  den.st!  that  it  was  impossible  to  see  the  lenjitli 
of  the  vessel.     The.se  toys  not  only   prevented  suc- 
cessful hunting,  but  l>ecau.se  «tf  them  many  boats  and 
canoes  were  lost.     Several   instances   apj)ear  in  the 
K'ecord  where  hunters  were  lost,  and  this  <lanyer  was 
perhaps  the  chief  cause  why  the  Indian  hunters  feared  R.,  i50,  lino 
to  yo  far  from  the  schooner.      Hesides  the  frecpiency    s'liiTi'iilJo 
of  toy,  it  would  appear  that  the  prevailiny  condition    •'^■ 
I'f  the  weather  in  Heriny  Sea  was  such  as  to  keep  the 
water  rouyli  and  danyerous  for  canoe  and  boat  and 
even  for  the  schooner.     This  fact  often  ))re vented  the 


I 


i>'i. 
S 


182 


UNCERTAIN    CHARACTEU    OK    SEAL    HUNTING. 


R..   380. 
(i7. 


R.,  :vsi. 


R..   J.-.l, 
1.'4. 


H..  109K, 
.<! 

Am.   Uv 
vol.    2. 

.-.in. 

R.,    702, 


R.,  600. 
-'4. 


hunters  troiu  u'oiu^'  out  and  lind  ii  material  ettect  upon 
their  inarksiiianshi|». 

.Fohn  ( Idtst'ord,  called  as  a  witness  hy  the  I'niteil 
States,  well  exjiressed  the  ditHculty  »»t'tlie  hunter  when 
the  sea  was  in  nidtinn: 

liue  (i>.  l>o  you  think  it  nearly  as  dillienlt  to  slioot  a  seal  asleeii 
on  the  water  as  to  shoot  a  duck  tiyinji'  with  a  riHe;  which  (hi 
you  think  it  wouhl  be  harder.' 

A.  1  think  about  tlie  same  on  tlie  water,  because  you  have 
the  double  motion,  Init  I  think  the  bird  would  be  the  hardest 
of  the  two.  At  least.  I  am  not  so  well  accustomed  to  shoot 
birds  as  1  am  seals:  theret'on'.  I  think  birds  would  be  tiie 
hardest  of  the  two. 

AjiJiin,  updii  the  same  snhjert,  he  says: 

line     If  a  nnin  is  not  accustomed  to  a  boat  or  canoe,  it  is  a  tick 
lish  thinji'.  and  a  man  can't  handle  a  gun  very  well. 

The  prevalence  ot"  stormy  weather  ami  chanji'es  id 
wind  and  I'oiis  are  anuuiii'  the  principal  contin;:cncies 
which  make  seal  hunting'  uncertain.  It  is  Itut  m-ci-s- 
sary  to  examine  the  evidence,  where  a  detailed  state- 
ment of  the  daily  operations  of  ditl'erent  vessels  are 
g-iven,  to  show  how  t're(|Uent  were  the  storms  which 
swept  across  Bering' 8ea,  although  in  many  cases  the\ 
were  not  general,  I)ut  local  in  character      For  exam- 

liui'ple,  tlu'  Mm II  Kllcii,  used  as  the  typical  vessel  hv 
(Jreat  Britain  tor  the  purpose  cit'  computin<i'  a  "proli- 
al)le  catch."  was  in  Herinj;'  Sea  in  .Vuji'ust.  ls,s(). 
twenty-nine  days,  durinji'  whicli  tinu-  she  had  fit'teeii 
da\s  ot'  weather  so  rou^^h  it  was  impossiltle  to  Idwe' 

linoa  Itoat.  The  IT. /'.  ■SV/y/^'vov/ during' twentv-t'our  da vs 
(d'   the   same   month    had    liut   elcM-n   in    which    lier 

i'-.caao<'s  could  he  lowered,     'i'he  Alfn<l  Ailaiiis  in  1SS7 
''was  in  the  Sea  tor  thirty  days,  dnrinji' which  time  she 

linn  lowered  l)Ut  t'orrteeii.     The  'I'riiiiit/ili  in  18SS  was  in' 
the  Sea  tor  a  perio(l  ot"  t'orty-tive  days,  durin<:'  which 
tinu-  there  were  l)Ut  seventeen  when  she  was  ahle  to 

line  lower  her  canoes.  The  same  vessel  in  1S9().  with 
white  Inmters,  who,  not  lu-in;:-  iiiHueiiced  l)v  tear  <d" 


UNCERTAIN    CHARACTER    OF    SEAL    HUNTING. 

ioiXA,  it  i.s  to  he  pre.suiiKMl,  hiwi'ivil  in  wt'iitlicr  wliicli 
would  liave  proveiitcil  Indian  liunters  fmni  si'iilin<>'. 
was  in  the  Sea  forty-two  days,  and  in  tliat  time  had 
hut  fifteen  whieli  were  not  too  unfavorahle  for  her 
l)oats  to  he  used. 

Tliere  is  ahundant  testimony  l)y  witnesses  pro- 
duced on  l)elialf  of  fireat  Hritaiii  tluit  a  eanoe  or  hoat 
is  lowered  wlu>never  tiie  weather  is  such  that  it  ean 
Hve.  It  is  apparent  how  imdenient  the  weatlier  iuid 
iiow  rou<>-li  the  sea  nortli  of  the  Ah-ulian  chain.  'I'hese 
conditions  also  hniited  the  success  of  huntin*-' hy  liav- 
inji'  a  marked  influence  upon  tlie  seals  themselves. 
If  the  weatlu'r  was  stormy,  it  was  impussiide  for  the 
seals  to  sleep,  and  if  awake  all  witnesses  aiiree  that 
the  difficulty  of  securinji'  them  was  lariich-  increaso<l, 
while  for  Indian  hunters  it  was  practically'  impussil)le. 
On  the  other  hand,  after  what  ma\  he  termed  for  that 
reii-ion  a  lon<>- period  of  (piiet  weather,  when  there  had 
heeii  opjtortunity  to  sleep,  the  seals  were  restless. 
.\jiain,  if  the  rain  l)ei;'an  while  the  sea  was  (piiet,  thev 
were  arouse<l  hy  it,  and  the  difliculfies  of  the  hunters 
were  increased. 

Atmospheric  chan.iies  tend  to  affect  the  .seals  and 
to  cause  them  to  he  wakeful  and  alert.  There  are  in 
their  natures  some  peculiarities  as  yet  unexplained, 
and  i»erhaps  unexplainahle,  which  caused  them  to  he 
aroused  when  the  hunters  expected  to  tind  them  sleep- 
inj>'.  IIun;i'er  is  another  cause  of  restlessness,  for  when 
seekinji'  it«  foo<l,  the  seal  is  in  constant  motion,  divin<i-, 
ha|Mi»i.',andformin<ia  most  ditlicult  mark  for  a  himtiM-. 

From  the  2(»th  to  the  2.5tli  of  August  the  <;ales. 
iH'comino'  more  frequent  and  incr.easinji'  in  intensitv. 
compelled  the  cessation  of  all  protitahle  seal  huntin^i'. 

'rhe  toiniajLi'e  of  the  schooner  employed  in  seaT- 
takiiij.'  materially  affected  the  determination  of  its 
seastin.  It  is  to  he  presmned.  and  the  Record  con- 
tains evidence  to  sustain  the  presumption,  that  the 


183 


w 


■  !  ^^ 


184 


I'NCEHTAIN    CHAHACTEH    OK    SEAL    HUNTING. 


» 


v.  20!t. 


nmstt'i"  of  a  sniiill  vt'sscl,  at  tlic  first  sijiiis  of  (•<»iitimu'il 
bud  weather,  eeased  operations  and  started  toward 
the  Aleutian   1 'asses. 

Havinysununarizetl  hrieHv  the  continjiencies  whicli 
particuhu'ly  appertain  to  the  hunters  and  tlie  seals,  it 
is  ]tropo.sed  to  examine  the  other  cnnditioiis  whicli 
tend  to  ino(lIfy  the  results  of  a  sealinj>'  voyajic,  autl 
to  place  the  (piestioii  of  its  protitahleness  heyoml 
legitimate   speculation. 

It  is  ap|»arent,  considering:-  the  class  of  men  who 
were  employed  as  seamen  and  hunters  upon  sealing' 
vessels,  and  especially  when  the  latter  were  Indians, 
ignorant  and  dilHcult  of  control,  that  the  char- 
acter and  experience  of  tiie  ca])tain  became  an 
important  factor  in  (h-termininj:'  the  success  of 
the  cruise.  Mutinous,  willful,  and  sui)erstiti<»us,  an 
Indian  crew  demanded  experienced  men  to  man- 
aji'e  them  The  selection  «»f  hunters,  either  Indians 
or  "whites."  so  important  to  the  success  of  the 
voyaji-e,  dependecl  lar<>ely  upon  the  knowledjic 
and  experience  of  the  master.  In  Herinj:'  Sea  his 
saji'acity  in  (leterminin<4'  from  observation  whether  it 
was  |)robable  »»r  not  that  seals  were  sutHciently  abun- 
dant in  the  vicinity  to  warrant  the  Itoats  or  can<»es 
beinji'  lowered,  was  important  in  determinin,<:'  the 
numl)er  of  the  Ncssel's  catch. 

Another  modilication  which  affected  thi-  results 
ol)taine<l  was  "luck."  That  there  is  any  certainty  of 
fiudinji'  seals  in  sufficient  nund)er  to  insure  a  pi-otitalile 
voyage,  or  any  locality  where  seals  may  l)e  always 
found,  is  denied  by  the  Tnited  States,  and  has  luen 
discussed  in  that  jiortion  of  this  argument  whicli  deals 
with  the  so-called  "sealing  grounds." 

Having-  considered  the  conditions  and  chances 
which  make  uncertain  the  success  of  a  sealing  voy- 
age in  Hering  Sea,  it  is  proposed  to  refer  to  the 
evidence  relied  upon  for  the  statements  made,  classi- 
fying the  testinionv  as   far    as    i»o,ssil)le    under    the 


I"!  • 


UNCERTAIN  CHAKAOTKK  OF  SEAL  HUNTING.       185 

liejuls    into    wliicli    the    sul)ji'ct    Uiiturallv    divides 
itself. 

The  witnesses  Ciipt.  Ah'Xiiuder  AFeLeini,  (liailes 
h.  U'ayiiur.  and  K.  V.  Miner,  witnesses  sworn  on  be- 
lialfof  tile  L'nited  States,  toj^etlier  with  Mr.  Alexan- 
der, of  the  L'nited  States  Kisli('onnni.ssion,  have^^iven 
evidence  .so  eoniplete  and  comprehensive  tliat^it  is 
deemed  advisable  to  in.sert  their  stat(;ments  as  a  whole, 
merely  annotatinjif  the  testimony. 

The  examination  of  Captain  McLean  npon  this  sub- 
ject is  as  follows: 

Q.  Will  vou  please  tell  lis,  a.s  to  the  large  catches  of  swil.s,!?.,  \2'>   line 
what  IS  the  condition  of  seals  in  tliese  laij-e  catches;  are    ^7. 
they  ruiiiiing  or  asleep.'  '         Conditicpii  of 

A.  Mostly  asleep.  >*oalg. 

<v>.  Do  yon  know  of  any  large  catclics  beini;-  niatle  of  rnn- 
ning  seals— seals  awake,  we  will  say .' 

<V  « 'i*^'^  '''"  '^  ^""^'  ""^"^  ^^"^  ^''"^  '"'*^  awake. 
r  /r!,        "''^'  *''^'  fl'aiHes  of  losiiifi-  an  awakened  seal? 
A.  iheie  are  a  good  many  chances. 

Q.  I  snppo.se  a  sleeping  sl-al  you  come  up  upon  verv  close, 
so  they  can  i)c  galled  before  sinking?  •  .  . 

LpiLln;'.;  •"'""'*'*'"'*''^'  ""•'  «'>"'eti.nes  they  get  away  after  Won  n.i  ed 
ueiiip,  .snot.  seals. 

*i».  Hven  a  sleeping  seal? 

A.  Yes,  sir. 

<,».  And  if  the  .seals  are  awake,  is  the  distance  longer  from 
which  yon  must  shoot?  *' 

A,  Ves,  sir;  but  .sometimes  you  get  a  chance  shot  when 
they  are  very  close  to  the  boat. 

<i>.  That  is  rather  exceptional,  is  it  not? 

A.  Very  rare. 

Q.  Now  supi>o.se  there  are  an  abundance  of  seals  in  the 
sea  iit  the  place  where  you  are,  in  ycair  ship  or  schooner, 
does  It  t()llow  that  merely  because  the  seals  are  there  voii 
will  get  them?  •' 

A.  No.  sir. 

(,).  Do  you  know  in  the  matter  of  scaling  whether  theDiiliculty  of 
scent  ot  your  approach  has  anything  to  do  with  awakeiiiiiir    "PProach. 
the  .seals T  " 

A.  Oh,  yes. 

<^  llow  far  will  they  scent  the  approach  of  a  man,  in  your 
experience?  '' 

A.  They  can  scent  a  man  or  a  boat  further  than  tbey  can 

«  s 24 


I:     l]l 


-J' 


186 


UNCERTAIN   CIIAKACTEK    OP   SEAL    HUNTING. 


Direction  of     Q.  So  tliat  ill  sipproiicliiiig  does  the  direetion  of  tlie  wind 
the  wiml.   i,m,e  anything  to  do  with  it? 

A.  Yes,  sir. 

Q.  And  how  do  you  approach,  when  yon  can  do  it,  in 
huntinfi  for  seals? 

A.  (ienerall.v  approach   from   tlie  leeward.     If  they  aj)- 
l)roa('h  from  the  windward   sometimes  they  have  to  take 
chances. 
Chnnceoies-     (j.  vViiat  is  tlie  effect,  if  they  note  the  ai>proacli  of  man, 
'="•"'•  upon  tlie  seal  herd  ? 

A.  They  will  wake  and  leave. 

Q,  How  fast  will  a  seal  make  way  to  escape? 

A.  Well,  it  is  pretty  hard  to  say.    They  can  travel  fast 
for  a  short  distance. 

(),  And  what  average  rate  will  they  keep  up? 

A.  Well,  if  they  want  to,  they  can  go  faster  tlian  a  boat. 

Q.  And  keep  it  up  all  day? 

A.  Not  all  day;  no,  sir. 

(J.  Their  food  supi>ly  is  lisli,  i.    .  not? 

A.  Yes,  sir. 

<^>.  Do  you  tind  tish  in  their  stonnichs? 

A.  Yes,  sir. 

Q.  And  what  sort  of  tish  ? 

A.  Well,  there  is  salmon  and  ditterent  kinds  of  small. 

<^>.  They  catch  them  in  the  Sea  '! 

A.  Yes.  sir. 
I'roxiinity  of     i).  Now.  tlic  i)assing  of  Other  boats,  and  the  use  of  guns, 
othir   ves-  whatetl'ect  dues  that  have  upon  the  sciiool,  if  y(m  find  theni? 
*^''''  A.   If  tliere  is  nuu'li   shooting  going  on   it    makes  them 

wilder. 

(}.  If  another  sliiji  has  passeil  over  or  shooting  is  going  on 
they  are  awakened  ' 

A.   Yes,  sir:  if  vessels  aic  around  they  get  wild. 

<j).   If  tiiey  get  wild  can  you  get  them? 

A.  Some,   but   not   as   many   as    if   they   iiad   not   been 
frightened. 
I'linncporcs-     (^>.   .And  1  think  you  have  already  stated  that  where  they 
i;\\H'.  .„.,.  already  awakened,  and  shot  at  a  distance,  there  is  dan- 

ger of  losing  tiiem? 

A.  Yes.  sir;  sometimes  they  get  away  from  new  men  after 
being  shot. 

(i>.  And  they  will  sink? 

A.  Well,  they  get  away,  and  probably  they  u\;\y  die  after- 
wanls. 

Q.  W  hat  i'tleet  has  rain  upon  the  seals  when  you  tind 
where  they  are — heavy  rain  ? 

A.  Well,  heavy  rain  disturbs  them;   it  depeiuls  on   tiie 


Kain. 


■^Wi 


f  the  wind 


cli  of  luaii, 


IS  <;<niij2'  on 


\v  men  afti'r 


UNCERTAIN  CHARACTKK  OK  SEAL  HTNTING. 

weatlier  that  tliev  had  bel'ore  the  rain  came.  If  it  has  been 
tine  vreatlier,  it  will  disturb  them  more;  they  will  not  rest  so 
well.  If  it  had  been  blowing  before  the  rain  they  will  sleep 
l>retty  well. 

Q.  Does  the  awakening  of  a  few  of  the  seals,  the  distiirb- 
aiiee  of  a  few,  tend  to  awaken  the  others? 

A.  Well,  that  depends  on  the  distance  they  are  apart. 

(}.  Althon^ii  a  man  msiy  be  a  ;io(mI  shot  at  a  mark,  or  shoot- 
ing game  on  land,  does  the  <|m-stion  of  the  experience  of  a 
man  in  hunting  seals  have  anything  t(»  do  with  the  inunber 
he  gets  when  he  finds  seals? 

A.  Yes. 

(i>.  In  what  way? 

A.  In  the  way  lie  ap|>roaclies  a  seal  bet'oi'c  lie  shoots  liim. 

<i>.  (iive  the  rommissioiiers  some  idea  of  the  way. 

A.  All  seals  don't  act  alike;  some  act  different.  A  man 
has  got  to  have  considerable  experience.  It  takes  prob- 
ably three  or  four  iiiontlis  before  he  understands  how  to 
approach  a  seal  ju'operly. 

ii.  And  what  is  tlie  proper  way,  from  your  experience,  to 
approach  a  seal  ? 

A.  That  dejiends  on  the  action  of  the  seal  at  the  time;  all 
seals  don't  act  alike.  Some  hunters  can  tell  how  to  ajtproach 
the  seal;  they  can  tell  when  they  see  him  a  certain  distance 
olf  whether  tliey  are  going  to  get  near  to  him  to  shoot  him; 
tell  by  his  actions  whether  he  is  asleep  or  awake. 

(i).  80  that  determines  the  distance  you  will  go  near  hiui? 

A.  Yes. 

(i>.  And  of  course  if  you  shoot  him  at  a  long  distance  you 
run  the  danger  of  losing  him  entirely? 

A.  Dependson  howyou  shoot  him.  If  he  isbadly  wounded, 
you  may  get  him. 

Q.  Now,  when  you  are  where  the  seals  are,  what  effect  does 
the  weather  have  ui)on  the  seals,  even  if  your  boats  will  live 
in  the  sea  ? 

A.  VYell,  if  it  had  been  tine  weather  and  the  seals  were 
rested  pretty  well,  and  if  there  was  bad  weather  approaching 
the  seals  get  restless. 

Q.  The  coming  storm  makes  them  restless? 

A.  Y'es,  sir. 

t).  That  is  a  modification  of  your  chances  to  get  seals? 

A.  Y'es,  sir. 

Q.  And  what  is  the  habit  of  the  seal  when  he  becomes  wild 
before  a  storm;  how  does  he  appear  differently  when  not  dis- 
turbed ? 

A.  Well,  he  moves. 

Q.  Lias  the  experience  of  the  captain  of  a  vessel  anything 
to  do  with  the  size  of  the  catch  for  the  season  ? 


187 


Proxi.''iity  of 
<>thvrsoal8. 


Expcrionco 
of  hunter. 


Shoot  in^tlis- 
taiicc. 


Weather. 


f 


5i:; 


I 


#; 


W 


Experience 
of  I'uptaiu. 


mm 


188 


UNCERTAIN-    CHARACTEK   OK   SEAL    HUNTING. 


A.  That  is  very  hard  to  say. 

i}.  The  oxporii'iice  of  thf  t-aptaiii  in  sealinj;? 

A.  I  do  not  wish  to  stale  tliat. 

Q.  Is  tiiat  hi'caiise  of  your  modesty  ? 

A.  No;  1  have  been  at  sea  a  good  deal 

().  Itnt  I  would  like  to  know.  Let  nie  see;  has  the  eai*- 
tain's  judjiiiient.  lieeause  of  his  experience  in  seal  huntinjj, 
anything  to  do  with  the  way  the  vessel  should  approach  the 
seal  herd  ? 

A.  It  has;  he  will  ha *e  the  vessel  jjroperly  equipped  and 
a  good  crew  of  men  aboard. 

Q.  lias  tile  st'lectiiin  of  the  (irew  anything  to  do  with  it? 

A.  It  has  a  yreat  deal. 

Cniifiiiii  Haviior's  tt'stiiuoiiy  is  as  follows: 
R.,  521.  line     <if.  What  i)art  of  the  sea  did  you  hunt  in  in  these  various 


ft"). 


year> 


A.  No  particular  jiart;  wherever  I  found  seals. 
i).  Did  vou  }i()  sometimes  to  the  westward  of  the  Pribilof 
Islands? 

.V.  Yes;  sometimes  to  the  westward  and  sometimes  to  the 
eastward. 

(,>.  To  tiie  north? 

A.  No:  to  the  northeast  end,  not  to  the  north  exactly. 
().  And  to  tiie  south? 
A.  Yes. 
Chauro   in     'i*'  I'roni  your  experience  in  the  .sea,  Will you  State  whether 
11  n  (I  i  n  jtyiiu  did  linil.  in  IS,S7-SS.  that  the  seals  were  to  be  found  in 
seals.  the  siime  place  tiiat  you  had  foniul  them  in  ISSti? 

A.  No.  sii':  the.\  were  not;  I  never  found  successive  years 
that  I  found  seals  in  the  same  pl;ice. 

(i».  In  looking-  for  seals  out  there  you  have  to  take  your 
vessel  around  various  i>arts  of  the  sea  to  come  across  a  bunch 
of  seals.' 
A.   Yes. 
Conilitloii  i)f     *)■  You  do  not  hunt  seals  in  herds,  do  you?    They  are 
Moals.  found  in  small  bunches,  are  they  not? 

A.  Mostly;   1  found  them  by  two  or  three  at  a  time. 
(i>.  There  is  ini  such  thinj;'  as  running  across  thousands  of 
.seals  ami  being  able  to  kill  any  number  of  them  in  a  short 
time  ? 

A.  No.  sir;  1  never  found  it  so. 

Q.  Seals  are  hunted  individually  more  than  collectively, 
are  they  not? 
A.  Yes,  sir. 
Proximity  of     Q.  And  they  are  found  in  bunches  of  two  and  three  and  of 
otherse-ils.  bunches  often  and  eleven  together? 


H    ;       1 


UNCERTAIN   CHARACTER   OF   .SEAL   HUNTING. 


189 


A,  Sometimes  you  see  them  in  hwjm  bun(!iie.s. 
Q.  Hilt  tiiey  are  geiienilly  uwake,  aud  you  can  not  aet  to 
tueni ; 

A.  Tliey  liave  what  we  call  lookouts,  and  are  on  auaid 
when  in  herds. 

Q.  NVhen  .seals  are  awake,  it  is  harder  to  ai)proacli  them,  DiftUulty  of 
and,  of  cour.se,  harder  to  kill  them?  aiiiiroacb. 

A.  Ves,  sir. 

Q.  The  majority  of  seals  are  shot  when  they  are  a.sleen.are 
they  *. 

A,  Ves,  sir. 

Q.  Now,  to  enter  into  tlie  matter  of  taking  .seals,  what  are 
the  eonditions  which  would  modify  the  number  which  can 
be  killed? 

A.  Well,  the  state  of  the  weather.    If  it  is  raining  or  strong  Weather 
wimls  or  anything  of  that  kind,  the  seals  do  not  sleep  very 
well;  and  in  a  strong  breeze  of  wind  you  can  not  get  on  to 
them. 

(^  Do  they  scent  you  ? 

A.  If  you  get  to  the  windward  of  a  .sciil,  tiiey  scent  you  at  Dheotion  of 
a  h)ng  distance.  wimi. 

(}.  Fov  that  rea.s(in  it  is  better  to  apinoacih  the  seals  from 
the  lee  side  ? 

A.  Ves;  from  the  ieeward,  when  tlie  wind  is  blowing  from 
the  seal  to  the  hunter. 

().  What  otiier  condition  niodilics  tlie  result  wiien  seal 
hunting? 

A.  Well,  a  great  deal  depends  on  how  the  hunter  decides  Ex]Hii..iM.. 
to  get  at  the  .seal.  of  Imntrr. 

(}.  Docs  the  experience  of  a  master  have  anything  to  do  KxiMTioiicr 
^vlth  It?  ■  oicaptiiiii. 

A.  Yes,  sir. 

().  Kxplain  to  the  romnii.ssloners  why  tliat  enters  into  the 
modihcation  of  the  result  in  seal  catching. 

A.  Well,  the  master  has  to  do  with  looking  tiie  seals  up. 
and.  after  he  sees  them,  keei)ing  his  vessel  in  position  and 
sending  the  boats  in  a  certain  direction,  and  so  on. 

(}.  Has  the  matter  of  handling  a  crew  and  .selecting  a  crew 
anything  to  do  with  it  ? 

A.  Ye.s,  sir;  it  has  a  great  deal  to  do  with  it— whether 
you  get  a  good  crew  or  a  bad  crew. 

(}.  Captain  Ogilvie  had  never  been  in  the  Sea  before,  as 
far  as  you  know? 

A.  As  far  as  I  know,  he  had  never  been  in  the  Bering 
Sea  before. 

U.  Seal 


ng; 


A.  Nor  never  did  any  sealing  there,  as  far  as  I  know. 


11)0 


INCERTAIN   CHAKACTEK   OF   SEAL    HUNTING. 


I'nixiiiiit.v  of  (^.  Till'  iineHtioii  as  to  whether  or  not  there  are  si'veriil 
oibcr  vos-  vessels  in  a  jjuoil  locality,  has  that  anything  to  do  with  the 
'•^''"  result! 

A,  Ves,  sir,  of  coiirse;  the  more  boats  there  are  around, 

eitiier  with  shooting  or  witii  sjtears,  it  wakes  the  seals  and 

keeps  them  moving,  and  you  would  not  get  as  nniny  as  it'  you 

were  alone. 

C  li  nnco  of     ^),  A  seal  can  travel  taster  than  a  man  could  row  in  a  boat 

esiaiic.       ,„,  ^imj  a  canoe  could  paddle? 

A.  Yes,  sir. 

(i.  Or  even  taster  than  an  ordinary  vessel  with  an  ordi- 
nary wind  coidd  travel  after  them? 

A.  Yes,  sir. 

<.}.  And  they  could  keep  up  that  rapidity  of  movement  for 
such  a  long  time  as  to  escape  their  pursuers,  could  they  not? 

A.  Yes,  sir. 

ij.  Have  you  observed  what  the  seals  feed  upon? 

.V.  Yes,  sir;  they  feed  most  upon  tish  and  sipiids  and 
shrimps  in  ditVerent  localities. 

<i>.  These  tish  travel  trom  one  i)art  of  the  sea  to  the  other 
in  the  same  season  '! 

A.  No,  sir;  the  fish  .shifts,  and  also  the  seals  shift  with 
them. 

Q.  That  is  what  I  asked  you;  1  asked  if  they  travel  after 
the  tisii ; 

A.   Yes,  sir. 

i).  From  your  experience  of  your  three  years  in  the  ISering 
Sea.  do  you  think  that  you  would  ite  able  to  estimate  the 
numlter  of  skins  that  a  vessel  would  take  in  the  year  I.S87 
going  into  Bering  Sea? 

.\.  Xo,  sir;  1  do  not. 

("aptiiiii  Miller  in  Iiis  exjiniiiiiitioii  iiwuU'  the  follow- 

iuji'  statciiu'iits: 

R.,  538,  line        .    „  ,  .  ,  .       ,       ..       ,  ,.  , 

43.  '^  Now,  when  ycm  went  into  the  sea  in  the  rcndope,  did 

you  come  upon  large  number  of  seals  at  times  ? 

A.  You  mean  in  sight  from  the  vessel? 

(I  Yes. 

A.  I  suppose  1  have  seen  bunches  of  20  or  2.5  seals. 

.  .        Q.  And  in  your  boats  ? 

irndliiK     -^'  I 'lave  seen  the  same  bunches  laying  around.     We  do 

seals.         not  estimate  the  number  of  seals  around  by  one  bunch.    We 

used  to  run  across  theni. 

Q.  One  bunch  would  indicate  that  there  were  other  bunches 

uear? 

A.  Ye.s,  .sir;  on  the  feeding  ground  of  seals. 


'i 


^    . 


UNCKRTAIN   CHARACTER   OF   .SEAL    HUNTlNCi. 


l!tl 


Q-  1><>  you  find  it  to  occur  as  an  onliuiiry  or  exceptional  t'o  nil  it  ion 
occurrence,  that  wiien  tiiere  are  abundant  seals  on  the    "'  "•"''i'- 
grounds  you  sonietiincs  can  lutt  get  them? 

A.  1  iiavc  seen  that  so.  I  have  seen  it  more  ditllcult  to 
get  them  when  tiiere  was  an  abundance  of  seals  than  when 
they  were  mor»!  scattered. 

<^  You  could  kill  in  a  segregated  bunch  easier  than  youi'roximity 
could  in  a  large  bunch?  <>f   other 

A.  Yes,  sir.  *"">'"• 

I}.  What  is  the  ditliculty  about  that? 

A.  They  do  not  sleep  wiien  they  are  together. 

<j>.  They  are  disposed  to  play? 

A.  Yes,  sir. 

(}.  And  when  awai;e  is  it  less  easy  to  get  them  ? 

A.  It  is  very  nuu;h  nioie  dilticuU  to  get  them. 

(}.  Is  tiiere  any  lariier  proportion  ol"  seals  lost  al'ter  being ciianct'  of 
sliot  when  they  are  awaiie?  escape. 

A.  Yes.  sir:  of  awake  seals  a  large  pn»i)ortioii  are  lost. 

Q.  VYhy  isthat? 

A.  Because  they  arc  stan<liiig  up  in  tlie  water  and  shot  in  '''l"*  ^>  "'"''" 
the  front  while  looking  at  you.    Tliey  fail  on  their  back  then,     '"^'' 
and  I  understand  that  the  air  comes  out  of  their  body,  and 
they  sink  tail  first. 

(j.  And  go  out  of  sight  and  are  lost? 

A.  Yes. 

<}.  They  don't  come  up  again  ? 

A.  I  never  knew  of  one  to  conic  up;  a  dead  seal  will  sink 
like  a  stone. 

<^.   Y(>ii  never  knew  (if  one  to  come  up? 

A.  I  always  understood  it  tliat  way.  Wlien  the  wind  is 
out  of  tlieiii  tliey  go  down  like  a  stone,  lint  if  tliey  are  shot 
from  the  back  they  float  (piite  a  while. 

i}.  And  they  are  shot  Irom  the  back  when  asleep? 
Yes,  sir. 

1  as  they  are  awake  tlu'v  "i"''""> , "'' 

apiiriiiicli. 

time  if  they  know  yon  are 


A. 

*}. 

usua 
A. 


When  you  approach   thei 
ly  aie  fronting  you? 
Yes;  because  most  of  the 
aiiout  they  try  to  look  at  you. 
(,>.   I>o  the  seals  sceiir  a  man  ? 
A.  Yes,  sir. 
Q.  At  what  distance? 
A.  I  think  at  an  extraordinary  distance. 
(}.  Itevond  the  sight  of  the  vessel  ? 

A.  Olu  no,  sir;  but  I  should  think  at  least 300 or  400 yards.  l>>re<tiou  of 
i}.  Is  there  any  special  method  adopted  because  of  this  in 
apiiroaching  a  seal? 
A.  We  always  ajjproach  from  the  leeward.    That  is,  if  we 


wind. 


'!'    1 


l!J2 


UN'CERTAIN    (MIAKACTEK   OK    HKAL    IIUNTINO. 


are  to  tlic  wiiulwanl  of  tlie  hi'uI  \vi'  ivro  i-arofiil  not  to  juihh 
her  that  way. 
Kxper  it'll  CI"     <^.  Now,  Captain  Miner,  out  of  a   hndy  of  seals  awake, 
of  Imiitur.  ^^.jijjf  ,„.„|„„.ti„„  of  tlieni  that  an'  killed  arc  lost? 

A.  It  *le|i«MiilM  a  >;n>at  deal  on  the  nnin  who  shoots  them. 
C'tiiiiu  «  of     If,  Do  you  shoot  them  at  some  distance  when  they  are 


limi 


"«• 


awake 


A.  If  you  shoot  them  at  a  lon^  *li>*ltinec,  I  think  fully  half 
would  he  lost. 
«.>.  I'uliy  lialff 
A.  Ves.  sir;  that  is,  when  we  kill  at  a  loiiu  distance. 


.'I.    lillr 


i).  Now.  Captain  Minei',  will  you  please  state  whether  the 
.Stals   awak-  liriuif  of  the  ;;nns  will  awaken  the  seals.' 
eueil.  A,   It  iloes  very  much:  yes.  sir. 

(j.  Does  it  tend  to  make  thern  wild! 

A.  Ves.  sir. 

(}.  And  do  they  run  from  the  slii))  or  from  the  boats  when 
the  fjuns  lie^in  to  tire  .' 

A.   I'hey  ^et  away  from  the  l»oat  that  is  tiring  as  fast  a.s 
they  (tan. 

(I.  .\m\  they  can  n'i>  faster  than  a  boat  can  be  i)ulled  by  an 
oarsman,  can  they  not? 

.V.  Ves.  sir. 

i).  So  that  the  ^uns  awaken  them,  and  the  seals  that  are 

near  enoufih  to  hear  the  <;uns.  to  be  fri}jhtcned  by  them, 

make  way. 

AtmoHphiTic      A.  1  think  atmospheric  chan^jes  have  a  yreat  deal  to  do 

cliniijtos.     ^j(|,  i(      Sonu'  days  they  apparently  sleep  vciy  soundly,  do 

not  awake  easily,  and  others  they  are  very  easily  disturbed. 

(}.  And  then  they  are  restive  and  run  .' 

A.   \ery. 

(),  An(i  yet  away? 

A.  As  soon  as  they  can. 

<i>.  Now,  is  it  a  fact  that,  takin}*-  the  season  of  July  and 
Aujiust,  you   net  a  very  small  i)ro|iortion  of  the  seals  you 
.see,  takinj;  the  sealing  season  from  beginning;  to  end  ? 
Skill  of  hun-     A.  Ve<,  sir;  there  is  a  f;reat  ditlerence  in  dilVerent  men  who 
teis.  hunt  ab(  lit  that.    1  have  carried  men  with  uw  who  I  don't 

think  w  riaUi  average  one  in  ten  of  what  they  saw;  other  men 
would  gci,  nine  out  of  every  ten  that  they  saw. 

Q.  V' !i  ;, oursclf  larely  lose  a  seal  when  yon  get  alter  him? 

A.  li  1  get  close  emiugli  to  shoot  him. 

(^.  Vou  usually  get  a  seal  when  y<iu  shoot  him? 

A,  Ves.  sir;  usually. 

i).  So  that  you  get  a  very  large  proportion  of  the  seals 
you  shoot .' 


i. 

I  .1 


UNCKRTAIN   CHARACTKH    OK    SKAI-    lll'NTINO. 


193 


A.  Yes,  sir;  I  don't  likti  to  taki^  *-Iiiiiiccm  iii  tlieir  ({ettiiif; 
away. 

</.  AikI  one  of  tlu-  reiiHoiiH  yon  gvt  so  liirgo  a  iiropoi  ti'ni 
is  your  familiarity  with  tlio  liitntinK  of  seals,  so  that  yon  do 
not  shoot  if  the  chances  are  against  yonr  getting  a  deatl  seal .' 

A.  Yes,  sir. 

If.  Have  yon   noticed   that   storms  suddenly  coming  up  wind, 
awaken  the  seals  and  nmke  them  restless' 

A.  Yes  :  even  a  small  itree/e,  I  think,  makes  them  miu'e 
restive  than  anything  else;  the  beginning  of  a  storm  coin- 
ing UJ). 

^).  In  that  case  they  are  awakeiu'd  f 

A.  Yes,  sir;  I  have  in>ti('ed  .1  great  nniny  instaiiccB  when 
tliere  are  a  great  nnniy  seals  in  sij;lit  in  dilferent  places; 
have  seen  them  eveiy  few  minutes;  and  when  a  light  lireeze 
sprang  np  tliere  was  not  a  setti  to  be  seen. 

(^  And  of  all  those  seals  in  sight  yon  wonid  get  no  more? 

A.  Yes,  sir;  they  disajipeared. 

(i>.  Aiiii  Inive  yon  noticed  that  a  heavy  rain  will  awaken  Uuiu. 
seals  f 

A.  Yes,  sir;  they  will  not  sleep  at  all  in  a  heavy  rain; 
they  will  roll  and  play. 

().  VVhiit  are  the  cliam-es  of  getting  seals  in  sight  when 
they  are  in  that  condition' 

A.  The  chances  are  against  getting  them;  one  has  to  work 
very  cautionsly. 

(}.  So  that  the  large  catches  are  nmde  of  the  sleeping 
seals? 

A.  The  largest  catclies  are  made  in  c;ilm  weather  of  sleei)- 
ing  seals. 

(.f.  Whiit  inive  you  to  .say,  Taptiun  Miner,  as  to  this  prop- <•)"»<•  p  of 
osition  f     You  seal  in  Bering  Sea  at  a  given  jioint  of  latitu«lo    '  j  "  '' ' "  f'' 
and  longitude  on  the  Sth  of  'Inly,  we  will  say,  l.s.Sd,  and  you    """  *" 
find  seals  in  plenty  and  good  hniding.     Docs  it  follow  that 
you  will  tind  seals  at  the  sann'  season  of  the  year  another 
year  in  the  same  latitude  and  longitude? 

A.  No,  sir,  it  doesn't. 

Mr.  Alcxaiuk'r,  whoso  iiivcstiojitioii  relative  to  tisli- 
iu<i'  and  seal  luintiiiji'  in  Herino'  Sea  tor  a  jH-riod  of 
oio'Iit  years  iinikt's  liis  ti'stiuioiiy  of  valuo  in  eoinuic- 
tion  with  the  present  suhjeet,  testified  as  foUows: 

Q.  And  from  your  experience,  wliat  conditions  would  youR.,  473,  line 
say  modify  the  number  of  seals  taken  by  vessels  ?  46. 


•?t: 


194 

£xpe  r 
of  ( 
aiul 
ers 


TNCKIMAIN    CHARACTKH    OK    SKAL    HL'NTIN(i. 

rieiuo  A.  TluM-oiiditioii  of  the  weatlior  would  enter  hugely  into 
oaptiiiii  it,  iiiid  the  sliiil  of  the  hunters,  tlie  previous  experience  of 
1  '>»''t- tin>  ,.j,|,t.,j|,  jii,,!  tlio  executive  ability  in  ie>riu'(l  to  handling 
crews,  piirliritliu-lji  tlioxr  iikhIv  up  of  Imlions,  and  the  (;hances 
uf  catchin<t'  seals  and  possibly  reinainiiiJL;  anu>nK  them  when 
t'ou'id.  I  mean  ol'  lindin;;'  seals,  and  of  reniainin;;'  ainou^ 
tlu>ni  when  touiid. 


I'loxiiiiity  <ii'     <v).  What  would  you  say  as  to  other  vessels  beiu}'   in  the 
other  "ves- vicinity? 

A.  A  !arj:e  number  of  vessels  beiufj  in  the  vicinity  would 
lessen  the  chanc'es  ot  each  vessel  takinjj  seals. 

<i>.  And  what  would  you  consider  favorable  weather  for 
sealing. 

A.  l'"avorablc  weather  would  be  clear,  or  a  comparatively 
sky  and  a  smooth  sea  and  a  y:cntle  or  a  very  moderat* 
brcc/e. 


sets. 


Wcatlier. 


or  a   very 

<kv  modifv  the 


^i.   Does  till'  weatlu'r  jirevious  to  a  cleai 
catch  at  all  in  any  way  '. 

A.  The  weatlu'r  previous.' 

(i>.  Does  the  weather  previous  to  a  elear  spell  attect  tlui 
eatcii :' 

A.  Yes.  sir. 

(i.  Ivxphiin  that,  please. 

A.  l'\)r  illustration,  there  has  i»een  a  j;<)od  deal  of  wiinl 
blowinji'  in  any  dii'ection  for  three  or  four  daxs.  an<l  the  seals 
are  tired  out.  'I'liey  will  naturally  slee|i  more  soundly  at  the 
end  of  the  "ale of  wind  than  otherwise.  Take  it  on  the  other 
hand,  when  seals  have  been  restinji  foi'  a  lonji'  tinu' — I  niiylit 
state  it  this  way.  that  in  a  hea\y  jiale  of  wiinl  seals  do  not 
slee]>  very  sonmlly.  and  possibly  will  not  sleep  at  all  uidess 
they  have  been  tired  out  l)y  jirevions  exhaustion  by  a  series 
of  ;:'ales.  sometliin<;  which  has  interrn])ted  their  sleep,  but  in 
cases  where  they  have  l)een  interrupted  by  wind  ami  weather 
they  will  sleep  uiuler  conditions  which  they  woidd  not  other- 
wise do. 

(j».  That  is  a  fact.  Mr.  .\iexander,is  it  m)t,that  notoidy  the 
weather  ol'  the  day  on  which  a  loweriuf;  is  made  alfeets  a 
catch,  but  also  the  weather  that  has  p)'e\iously  been  bad  '. 

A.   N'es,  sir. 

(,>.  And  what  woidd  you  cinisider  unfavorable  weatluT  for 
seaiiii};,  beside  the  mere  fact  of  bcinp;  unable  to  lower  your 
boat  on  account  of  rouuli  water? 

A.  Well,  at  tinu's  very  fo;;};y  weather  interferes  with  the 
loweiiu};  of  the  boat,  ami  sometimes  heavy  rain  will  inter- 
fere;  that  is,  it  won't  interfere  with  the  lowerinfjol  the  boat, 
bnt  the  chances  tire  unfavorable  for  <atcliin}'  many  seals 
v.li'Mi  it  is  rainin;^  —  ry  hanl. 


UNCERTAIN    PIIARACTEK    OK    SEAL    HUNTING. 


19f 


Q.  Wliy  is  tliat  ? 

A.  Hi'c.iiiise  the  heiivy  rains  ofUinies  cause  tlie  seals  to  ijai,,. 
become  restless.    They  don't  sleep  .soundly,  and  they  are 
hard  to  approach. 

i).  NVhi.t  would  you  say,  from  your  knowledfje  and  «'xpc- 
rien<e.  as  to  the  weather  in  the  .sea? 

A.  It  is  variable. 

Q.  Is  it  variable  in  dirterent  localities  in  the  sea  ? 

A.  It  is. 

Q.  Can  you  illustrate  that  in  any  way? 

A.  I  can  illustrate  it  by  a  crui.se  I  made  in  the  Linds  Ohcii, 
before  sjioken  of,  during  the  month  of  Aufjust.  .V  larjicr  por- 
tion of  it  we  were  to  tlie  west  and  northwest  of  tiie  Seal 
islands,  or  the  I'ribylof  Islaiuls.  during  wliicli  tinu'  we  only 
lowered  the  nnn>ber  of  days  whicii  I  have  nuMitioned;  and 
nearly  all  the  time,  if  not  (piiteall  the  time,  two  deforces  .south, 
or  two  and  a  half,  as  the  case  may  be,  <lown  at  what  tliey  call 
the  lio};osl()lf(i  rounds,  there  were  lowerinjis  made  every  day. 
and  a  hun'c  number  of  seals  were  bcin;^'  taken,  while  we  were 

in  jiales  of  wind  nearly  all  the  time. 

•  #       '  *  »  # 

'  i).  Now  I  will  rejM'at  the  question.     VViiat  would  you  .say  i;..  ivc,  lin.. 
to  /.ones  of  fi'ood  weather,  and  zones  of  bad  weather?  '-'5. 

A.  I  think  there  are  /.ones  of  jj;iiod  weathci'  and  /ones  of  Wo  a  t  h  o  r 
bad  weather.  ""'«*'• 

<^  What  would  you  say  as  to  any  particular  locality  for 
lair  weather? 

A.  There  are  no  known  spots  so  far  as  1  know  where  it  is 
ab.solutely  certain  to  liud  fair  weather,  or  alisolntely  <ertaiu 
to  find  foul  weather.  They  vary  according  to  the  circum- 
stances. 

i}.  Is  there  any  hmalitv  where  seals  can  alwavs  be  found  c  li  anoc  of 
in  abundance?  '  lin.ling 

A.  I  know  ot  none. 

(},  In  your  e.\perienee  of  two  years,  did  you  ilnd  seals  at 
the  same  place? 

A.  Vv'c  fouuu  seals,  bui  they  «ere  notalway.s  of  the  same 
nunil)er,  or  et|u:'l!i  abunda.it  on*'  time  as  another;  they  va- 
ried. 

»  »  *  »  • 

i).  Mr.  .\le\ander,  wiil  you  state  what  rcasi.-n  you  would  I{.,l77,linc  I. 
give  for  the  abundance  of  .seals  at  a  certain  place  and  a  cer- 
tain time,  a.nd  their  not  being  found  at  another? 

/».  Oh.  largely  to  the  migratory  .S|)ecie8  of  the  tlsh  which 
they  subsist  on. 

i}.  What  is  their  food  t 

A.  Their  food  consists  of  c<-d,  in  a  measure,  salmon,  squid, 
medusa',  an<l  tloating  crustat  ea. 


I 


1U6  LNCEKTAIN    t'HAKACTKR   OF   8KAL    HUNTING. 

Q.  You  would  say  i»racticall.v  they  are  surface  feeders? 
A.  They  are  juactic  ii)l,\  surface  feeders. 
Q.  -Viid  the  species  of  tish  migratory? 
A.  Mifjratory. 

»  '   •  •  •  • 

Proximity  of     (^>.  Wiiat  wduhl  you  say  as  to  tlu^  uuuiber  of  vessels  in  a 
other   ves-  t-ertaiii  locality  alVectin}'  the  catcli  ? 

*® '■'  A.  1  shouhi  tiiink  tiiat  a  larj-c  number  of  vessels  in  a 

locality  where  seals  were  fairly  abundant  would  have  a  ten- 
dencv  to  lessen  the  individual  catcii. 

<^>.\Vhy? 

A.  Itecansc  seals  arc  very  timid, and  the  more  boats  there 
are  on  a  jiivcn  {ground  covering  a  small  or  laijic  area,  as  the 
case  nniy  be,  would  have  a  tendenc-y  to  friniiten  thcni  <! 
docs  fri;;hten  them:  tiicy  aie  harder  to  ai)in'oach — I'  <s  c.'  'v 
olttained. 
Condition  .it'  (,'.  Now,  from  your  knowledge  of  sealing  in  Itei  ■;■,  .Sea, 
seala.  even  if  you  possessed  tin'  data  as  to  the  number  ol'  hm  tcis, 

theii'  skill,  the  e.\i)erience  of  the  captain,  and  the  conditions 
of  the  weather,  locality  of  tin'  vet^sel.  and  the  proximity  of 
other  vessels,  do  yon  think  there  is  any  liasis  ui>on  wliicli 
the  pr  liiable  catch  of  a  vessel  for  a  given  iieriod  of  timecou''l 
be  predicated  .' 

A.   I  do  in)t. 

().  In  connection  with  your  duties  on  the  fish  ("ommission, 
have  you  studied  the  habits  of  migratory  tish  in  Bering  8ea 
that  you  have  s[ioken  of? 

A.  Ves,  sir. 

<i».  How  many  years  have  you  nunle  a  stndy  of  those? 

.V.  I  think  it  is  eight  years  since  1  lirst  went  there. 

I5('si(lcs  tlic  TfstiiiKHiy  nf  tin'  lour  witiu'sscs  iiivcii 
iilidvc,  tlic  cviilciicc  rclatiiiii'  to  this  siil)jt'ct  is  as  tol- 
lows: 

Tlic  lirst  citation  is  ail  nlistract  rciiu  into  tlic  iu'cunl 
tVoiii  tlic  case  of  tlic  riiiicd  States  siilniiittcd  to  tlic 
'rriiimial  of  Arhitratioii  at  i'aris.  It  relates  |iartic,'- 
larl\  to  tlic  (lilliciilty  the  limiter  experiences  in  ap- 
proacliiii^' a  seal  and  scctirin;^'  it  after  l)cinj;'  wounded. 

This  is  self-evident,  when  the  fact  is  taken  into  consi<lera 
tion  that  the  boat  is  in  alanist  constant  motion,  and  the 
mark  is  the  simill  head  of  a  seal,  among  the  waves,  .">(>.  10,  ,■>(», 
or.  when  a  rille  is  used,  even  KM)  yards  from  the  hunter. 
I'our  other  conditions  also  modify  this  possibility  of  loss: 
First,  the  state  of  the  weather.  f(U'  if  the  water  is  rough  the 


R.,  27H,  lini 


UNCEKTAIN    iHAKACTKK    OK    SEAL    HUNTING. 

boat  and  the  seal  liaviD^'  more  motion  the  ])er<MMitiige  of 
thr'je  killed  or  stunned  by  the  shot  is  inneli  less  than  when 
the  sea  is  smooth;  secontl,  tlie  condition  ol'  the  seal  shot  at, 
for  if  breeehiii};-,  the  shot  beinji  at  the  body  is  not  liable  to 
|)araly/e  the  animal,  thongli  it  nniy  be  as  fatal  as  when  the 
seal  is  asleeji  on  the  watei-  with  only  a  i>ortion  of  its  head 
exposed  as  a  mark;  third,  the  skill  of  the  Imiiter  is  also  to 
be  considered;  and,  fourth,  whctlier  or  not  the  sesiis  are 
wild  and  hard  to  approach,  in  which  case  the  hnnter  is  from 
necessity  compelled  to  liie  at  lonj;  ranye. 

A  second  citiition  tVom  the  siiiiic  (lociiiiicnt  trciits 
of  the  (litlirultv  of  securing;'  tlic  aiiimiil  jiftcr  it  Iwis 
beoii  killcil. 


197 


liesides  those  lost  by  woiindinj;'.  in  many  cases  otliers  K.,  i'73,  line 
killed  outright  arc  not  taken,  because  the  specilic  !.;ra\ity  of  '''■ 
the  seal  lieing'  greater  than  water,  it  sinks  before  it  can  be 
secured.  In  order  to  sa\'e  as  many  sinkinj;'  seals  as  possible, 
each  boat  carries  a  jratf  with  a  handle  from  four  to  six  feet 
lonj;',  with  which  to  >;rapi)le  the  carcass,  if  the  point  where 
it  sank  can  l)e  reached  in  time  to  do  so.  Of  course,  in  secur- 
ing a  sinkinj;'  seal  much  depeiuls  on  the  distance  from  which 
the  seal  was  shot,  the  condition  of  the  water,  wliether  roufrh 
or  smooth,  and  wliether  or  nut  daikened  by  the  blood  of  the 
animal,  as  also  the  skill  of  the  hunter  in  marking'  with  his 
eye  the  i)la<'e  where  the  seal  sank,  it  can  therefore  Ite  seen 
tliat  the  ran>;eof  jjossihle  and  probable  loss,  in  case  the  seal 
is  killed  outiiKht,  is  certainly  larj;*',  tlKui}-'!!  not  so  great  as 
when  the  seal  is  wounded. 

The  iil»o\t'  citiitioiis  relate  |iai'ticiilarl\  to  the  e\|ie- 
rieuce  id'  tlie  liimter,  and  tlie  tollowiiiii'  testimony 
is  ii|ioii  the  same  siilijeet. 

Williiim  r.  liiaoji'.  eaUed  on  luduilf  of  (ireat  Hritaiii, 
testified  : 

i).  Now.  witness,  does  it  make  any  dilference  about  the '(.-'(k),  Hnoti. 
catch  of  a  vessel,  the  capacity,  and  experience  of  the  hunters .' 

A.  It  does, 

<^.  What  other  contingencies  are  there,  witness,  that  youK,,  I'tiri,  line 
know  of,  that   would  nnike   a  dilference  in    results   of  one    ^^^ 
hunter  as  against  another,  or  of  one  boat  as  against  another? 

A,  1  do  not  understaiul  your  ipiestion, 

Q.  What  facts  that  yon  kiniw  of  arise,  which  make  a  dif 
ference  in  the  catch  of  om-  boat  as  compared  with  another, 
except  the  .scarcity  or  plentifnlness  of  seals? 


198 


UNCERTAIN   CHARACTEK   OF    SiKAL    Ht'NTING. 


R..  2!!8. 
39. 


H.,  ■i2~. 
65. 


lino 


A.  Well,  some  hunters  are  8uperi(»r  to  others,  and  tlien, 
apiin,  it  depends  on  your  boat'.s  erew. 

Q.  Vour  ves-sePs  crew,  you  mean  ? 

A.  The  crew  of  the  boat. 

Q.  Of  the  small  boat? 

A.  Of  the  small  boat;  yes,  sir. 

if.  What  do  you  mean  by  that?  What  would,  depend 
upon  the  crew,  as  to  whetiier  they  could  reach  the  seal  or 
not  after  it  was  shot? 

A.  It  is  in  chasing  a  cripiile,  or  in  getting  over  nmre 
ground.  A  good  crew  can  get  over  more  ground  in  a  day 
than  a  poor  crew,  and  the  more  ground  you  go  over  the 
more  seals  you  are  liable  to  get. 

.1.  I>.  WiUTcii  testitii'tl  iis  follows: 

lino     i}.  Does  the  result  of  the  sealing  voyage  depend,  to  any 
extent,  on  the  experience  of  the  huntersf 
A.  Oh,  yes. 

Ciiptiiiii    .McKit'l,  tcstilit'd  : 

<i.  Is  it  an  advantage  to  have  three  men  in  a  boat? 

A.  Yes,  sir. 

i}.  And  yon  would  not  have  sncli  good  results  with  two 
men  in  a  boat  ? 

A.  Well,  no;  three  men  do  better  work  than  two  men. 

(}.  One  of  them  pulls  the  boat,  one  of  them  steers  the  boat, 
an(l  one  of  them  shoots  ? 

A.  Well,  yes;  the  steerer's  work  is  to  get  up  on  the  seals; 
he  steers  the  bout  up  on  the  seal. 

<^.  And  outside  of  that  time  he  also  pullsf 

A.   I'ulls  or  pushes. 

Q.  Is  it  a  fact  that  sometimes  the  puller  or  steerer,  or  both, 
shoot  f 

A.  Xever  to  my  knowledge. 

i).  15ut  where  there  are  three  men  in  a  boat,  it  gives  the 
hunter  better  opportunity  to  shoot  than  where  there  are 
only  two  ? 

A.  Yes;  the  hunter  has  a  better  opi)ortunity. 

Q.  .\nd  it  is  to  be  expected  that  he  will  have  better 
results? 

A.  Kxactly. 

Ciipt.  W.  K.  liakiT,  ijfiivc  tilt'  t'ollowiiiji'  tcstiiiuniy: 

R.,  727,  Hue     Q.  Now,  does  it  make  any  «lirterence  in  the  result  as  to 
58.  whether  your  hunters  are  experienced  or  not! 

A.  Yes,  sir. 


m 


UNCERTAIN   CHARACTER    OF   f^EAL    Hl'NTIX<i. 


I'J'J 


Q.  Ami,  tlierefore,  a  niau  witli  tliive  years'  experience,  if 
lie  was  a  good  shut,  would  get  more  seals  tbau  lie  would  iu 
his  earlier  years? 

A.  Yes,  sir. 

(}.  Well,  admitting,  then,  that  their  hunters  had  not  asR.,  78!t,  line 
niuch  experience  as  your  hunters,  would  you  say  that  it     19- 
would  he  lair  to  hase  the  eateh  of  the  other  vessel  on  what 
you  did  '. 

A.  No,  sir. 

As  to  the  (.'XiiericiH'e  ut  tlic  caiitaiii,  tin-  witiu'ss 
Hnijij^',  t('stit'viii<>-  ill  ivii'jinl  to  tin-  Mar//  i'JIcii  in  1S86, 
stated: 

.jt.  Do  results  depend  any  on  the  capacity  of  the  master  |{.,  265,  line 
of  a  vessel  as  to  his  experieime  in  the  manner  of  locatinj;?        •"'-■ 

A.  It  does. 

Q.  Ami  the  Captain  of  your  vessel.  Daniel  McLean,  was 
one  of  the  most  exjierienced  men  in  the  business? 

A.  lie  was. 

Captaiii  Maker  said  that  the  skill  ul'  tin-  caiitain  ini^v,-'^^'  ""'' 
some  de<;Tee  entered  into  the  |)rolial)ilities  ot"  a  catch 
in  Hei'iiiii'  '"^ea. 

('apt.  ('.  X.  Cox  ji'avi'  tlie  I'ollowiiij:-  testimony: 

Q.  Is  it  notafact,  Captain,  that  a  inau's  skill  as  a  captain  ".J"'**'  ''"" 
aiul  his  reputation  depend  on  the  success  lie  lias  in  haiidliny' 
his  crew  (if  hunters  and  seamen  '. 

A.  Oh.  yes;  to  a  I'ertain  extent  it  dues. 

<i>.  And  by  handling'  his  crew  with  success,  you  mean  man- 
aging  them  so  that  vou  can  get  the  best  results? 

A.  Yes. 


(i.  You  were  asked  by  Mr.  Warren  as  to  whether  there  I>'m"'1--  1'"«< 
was  uot  a  good  deal  of  luck  in  this  matter,  and  iiarticularly     "■*■ 
whether  there  was  not  a  good  deal  dejiended  on  the  way  the 
captain  handled  his  ineii,  and  you  said  there  was. 

A.  \'es,  sir. 

Q.  Assuming  that  you  have  a  cajitaiu  who  knows  how  to 
handle  his  men.  there  is  not  much  chance  about  it.  is  there? 

A.  I  consider  the  chances  are  whether  the  captain  stays 
among  them  and  gets  them  or  not. 

Q.  If  you  once  find  seals  the  captain's  duty  is  to  keeji 
ainniig  them  ? 

A.  Yes,  sir. 


iii'ini' 


200 


UNCERTAIN    CHARACTKR   OF   SEAL    HUNTING. 


R.,  fil3, 
19. 


Q.  And  if  you  do  that  is  there  much  chance  about  itf 

A.  No  chance  whatever. 

Q.   Wliy? 

A.  If  you  stay  amou^thcin  you  will  get  them. 

A  portion  of  tliis  extract  is  citt'd  in  tlie  Arf^unicnt 
on  l)i'liiilt"  of  Great  Britain  to  establish  the  eertaintv 
of  sefurinji'  seals.  It  is  needless  to  say,  in  connec- 
tion witli  the  witness's  statement  that  the  seals  arc 
found  "scattered  aljout,"  and  "three  or  four,  or  two" 
to;ietlier,  "very  often  one,''  that  the  chances  he  refers 
to  are  sufficiently  numerous  to  make  the  i»rohal)lc 
siu'cess  of  sidjf'ntii  diiioiif/  fliriii  \  erv  uncertain. 

'i'he  capacity  of  the  huntin;>'  power  of  a  canoe  de- 
pends in  a  measure  upon  the  mnid)er  of  skilled  hunt- 
ers it  contains.  I'pon  this  sul)ject  .1  D.  AVarreu 
testitied  as  follows: 


K.,  1.'80, 
'2i. 


line 


<i>.  And  how  many  of  them  liunted  ' 

A.  There  were  not  always  two  huntei's;  sometimes  there 
was  merely  a  canoe  stcercr  and  an  e.xi)erienced  Indian 
hunter.  Sometimes  there  would  be  two  expericiu-ed  hunters 
in  tiie  canoe. 

t}.  How  many,  all  told,  in  the  canoe? 

.\.  Two.  Sometimes  they  would  be  both  exiierienced 
hunters,  and  one  would  i)addle  and  the  other  one  wotdd 
strike  (spear)  the  seal,  or  sometimes  they  would  both  strike 
the  >*"al. 

Q.  And  ai'tually  hunting  in  each  canoe,  how  many  were 
there ;' 

A.  Two. 

Q.  Hut  you  say  that  oue  had  to  paddle  and  mauage  the 
canoe? 

A.  Well,  sometimes,  if  they  came  on  two  seals,  both  would 
strike. 

^i.  Ibit,  as  a  rule,  one  was  to  manage  the  canoe  and  the 
other  to  hunt  or  strike  the  seal '. 

A.  Yes. 

(^  What  you  mean  by  there  being  two  hunters  is  that  they 
both  had  spears  and  were  prepared  to  hunt  if  they  got  the 
chance  ? 

A.  They  were  both  practical  spearsnu'u. 


in   some   insti;!'.ces   ;>-uns  were   used  by 
Indian  hiuiters.  yet  it  appears  from  the  evidence  <;iven 


Althouo'li 


UNCERTAIN    CHARACTER   UK    i<EAL    HUNTING. 


201 


by  Williiim  1).  Hycrs  tlint  they  wore  not  skillful  in  their 

use  in  the  years  l.S8(i  iuid  1S87.     Thewitnesstestified:  i{.,32i,iine9. 

Q,  You  were  asked  something  about  tbe  (lifference  between 
wbite  men  and  Indians.  I  simply  want  to  ask  you  this 
question:  In  1886  and  18S7  were  the  Indians  in  the  habit  of 
using  guns  at  all  ? 

A.  No. 

Q.  So  if  you  had  an  Indian  crew  at  that  time  you  would 
have  to  use  sjiears  ? 

A.  Yes,  sir. 

Q.  At  tliat  time  which  were  considered  best,  spears  or 
guns? 

A.  (inns. 

The  inn-eliiil)ility  of  the  Indiiiii  hunters  and  the  dif- 
ficulty which  attended  their  eniplovnient  as  hunters 
l)ecause  of  their  ignonvnce  and  superstition  receive 
a  coni])lete  demonstration  from  the  evidence. 

Alexander  Kei)i)en,  called  as  a  witness  on  behalf  of 
Great  Hritain,  beinj;  questioned  as  to  the  reasons  for 
the  iiracc  leavinj^-  Jiering  Sea  in  l.S8(i,  gave  the  fol- 
lowing testim«»nv : 


■4-) 


R.,  307,   lin« 
10. 


(}.  And  when  did  you  leave  the  Bering  Sea   ? 

A.  We  left  on  tlie  14tli  or  l.">th  of  August. 

Q.  Wliy  did  you  leave  on  the  14th  or  15th  of  August? 

A.  VVell,  Indians  wanted  to  go  home. 

Q.  Did  they  object  to  remaining  any  longer? 

A.  They  were  afraid,  I  think.  Tiiey  objected  to  staying 
any  longer. 

Q.  They  were  not  used  to  going  to  Bering  Sea,  I  sup- 
pose ? 

A.  No,  sir. 

Ag-ain,  at  another  place  in  his  examination,  the 
same  witness  said: 

The  Indians  don't  go  out  in  foggy  weather.  ^   30^    uye 

•  *  *  *  «  1'3. 

Q.  Is  it  not  a  fact  that  before  you  came  out  it  was  blowing  u.,  310    uno 
pretty  hard,  and  that  was  the  reason  tlie  Indians  wanted  to    30.    ' 
get  away? 

A.  Yes;  the  weather  commenced  to  be  a  little  bad. 

Q.  Are  not  the  linlians  very  superstitious? 


B  s- 


li(i 


202 


UNCERTAIN-   CHARACTER   OF   SEAL    HUNTING. 


K.,  757, 
35. 


A,  Yes;  tliey  are  as  a  general  rule. 

Ij.  And  if  tliey  want  to  go  away  do  the  captains  have  to 
got 

A.  Yes;  to  humor  them.     It  is  of  n<»  use  to  go  against  thcni. 

Q.  Is  it  not  a  faetthat  the  .season  was  practically  ended  on 
the  15th  August  that  year? 

A,  If  we  ha<l  had  wliite  men  wo  could  have  stayed  longer. 

(Japt.  Williiiiii  ('(».\,  relied  upon  by  Great  liritaiu, 
•rave  the  t'ollowiii;^'  testimony: 

line     (}.  Why  did  you  leave  on  the  l.")th  of  August? 
A.  The  Indians  would  not  work  any  longvjr. 
Q.  And  yon  left  on  the  l.'tth  of  August? 
A.   Yes.  sir. 

•  *  •  •  * 

Q.  And  the  Indians  mutinied  and  w<mld  not  work  ? 

A,  They  would  not  work. 

Q.  What  was  the  matter  with  the  Indians  I 

A.  Tiiey  wanted  to  go  home. 

(.}.  Did  you  have  to  go  home? 

A.  Yes.' 

(.}.  Was  there  any  talk  of  seizure  in  1890? 

A.  Xo. 


li.,  7r)8,  line     ^i-  When  you  say  the  Indians  wanted  to  go  home,  what 
55.  did  they  do .' 

A.  They  broke  their  spears  up  and  threw  their  paddles 
away. 
Q.  Was  there  anv  use  staying  any  longer? 
A.  Xo. 

Q.  IIow  was  the  weather  getting  when  that  hai)pened? 
A.  It  was  getting  better. 

An<l  ajiJiin  in  dealinii'  with  tlie  j>eneral  ([uestion  of 
the  (liHicnlties  to  he  met  by  a  captain  wlio  lias  em- 
ployed Indian  hunters,  he  testified: 

K.,  7G2,  line     Q.  An  Indian  is  usua''y  ready  when  he  is  ott'  sealing  to 
37.  make  what  money  he  can,  is  he  not? 

A.  Yes,  sii';  when  he  is  out  tliere,  but  wiien  they  take  a 
notion  in  tiieir  heads  money  won't  stand  in  the  way. 

Q,  The  only  notion  you  know  they  took  in  their  heads  was 
they  wanted  to  go  home  because  of  dirty  weather' 

A.  Well,  as  I  say,  there  was  one  sick  Indian  aboard ;  the 
Indians  were  all  afraid  he  would  die  and  be  a  sort  of  Jonah. 


'I 


UNCKRTAIN    CHAHACTKR   OF   SEAL    IlL'NTINa.  203 

(.i.  Tliey  are  superstitiinis  iibdut  that,  are  tliey  not? 
A.  Very. 

The  cuiulition  of  tlio  seals  as  art'octiuj^'  tli(>  results  of 
a  voyjvge  are  referred  to  by  several  witnesses.    Aiiiony  jj.  608  line 
them  (J.  N.  Cox  f>ave  the  follo\vin<i'  testimony:  37. 

().  Just  tell  the  Commissioners — you  have  had  considerable 
exi)erience  in  sealing- — when  you  are  out  sealing  how  many 
seals  are  there  in  a  bunch  that  hunters  go  after  ordinarily; 
how  do  they  travel  ? 

A.  Oh,  we  h>wer  very  often  and  we  don't  see  seals  at  all. 
Wheu  the  day  is  tine  enough  to  put  our  boats  out  we  lower 
whether  we  see  seals  or  not,  when  we  consider  we  are  on  the 
ground  for  seals. 

After  referring;'  to  a  sinj^le  instance  when  he  saw  a 
larf>e  body  of  seals  off  the  ('olnml)ia  Kiver,  the  wit- 
ness was  asked: 

(i.  You  never  saw  any  in  r>ering  Sea  in  such  crowds  as  U.,  608,  Hue 
them  *  «o. 

A.  I  have  seen  quite  a  number  of  seals  from  the  vessel, 
but  I  don't  know  that  we  ever  lowered  expressly  for  that 
purpose. 

(}.  You  don't  want  to  be  understood  as  testifying  that 
boats  go  out  into  a  large  herd  of  seals  and  catch  them  right 
and  left  1 

\:  ^o,  sir. 

(i.  They  take  them  uj)  separately  ? 

A.  Yes;  one  and  two  together — three. 

Ajiuin,  refeiTin;^' to  the  way  in  which  the  huntinji'  is 
done,  the  witness  <^iive  testimony: 

(J.  They  |the  canoes]  circulate  about  the  boat,  and  when  K.,t>0'  lino3. 
they  find  a  seal  sleeping,  traveling,  or  breeidiing,  whatever 
lie  may  be  doing,  they  kill  it. 

A.  Yes.  sir. 

Q.  Then  they  go  searching  for  another? 

A.  Yes,  sir. 

Q.  It  is  a  fact,  is  it  not,  that  when  there  are  a  large  num- 
ber of  seals  traveling  together,  tUey  have  seals  on  the  edge 
of  the  herd  that  keep  au  outlook,  and  it  is  very  hard  to 
approach  them  ? 


mi 


204 


UNCKBTAIN    CHARACTER   OF   HEAL    HUNTING. 


A.  Ves;  when  tbey  are  sleeping,  a  laryc  number  toyfther, 
they  arc  iniit-h  iiinruditticult  together  than  if  sleeping  singly. 

(j.  Then  it  is  a  tact  that  if  they  are  more  abundant  in  the 
neighborhood  of  the  vessel  it  is  harder  to  get  them  ? 

A.  I  do  not  think  so. 

l}.  VVMicre  there  is  a  large  bunch  of  seals  asleep  they 
always  have  outlookcrs  f 

A.  There  is  generally  otie  or  two  awake. 

Q.  Tliey  make  a  noise  and  others  are  aroused  i 

A.  Yes,  sir. 


Upon 
asked: 


his  rt'direct    exainiiiittion  tlie    witiu-ss    was 


H.,  out,  liii«     (}.  Do  seals  herd  together,  as  Mr.  Warren  suggests! 

1.  A.  I  have  never  seen  them  that  way. 

K.  6ia   line     *^  Coming  baek  to  the  iioint  about  the  seals  being  all  in  a 
12.    '         herd  together,  is  that  the  case  at  all  in  the  months  of  July, 
August,  and  September? 
A.  I  liave  never  seen  them  in  that  way. 
Q.  How  do  you  tind  the  seals  then  ? 
A.  Scattered  about. 
Q.  On  certain  grounds? 
A.  I  seldom  find  them  on  the  same  grounds. 
Q.  llow  many  will  you  find  together,  as  a  rule? 
A.  Three  or  four,  two,  very  often  one. 
Q.  And  this  idea  of  large  herds  with  watchmen  to  keep  the 
pelagic  sealer  oft",  is  there  any  of  that  kiiul  in  Bering  Sea? 
A.  Not  in  my  experience. 
K.,  613,  Hue     Q.  l)i«l  you  ever  meet  a  mass  containing  as  many  as  25 
81*  seals  close  together  in  Hering  Sea  at  once? 

A.  No.  sir. 

Q.  You  meet  them  in  scattered  numbers  ♦ 
A.  Y'es,  sir. 

Tliniiiiis  11.  lirowii,  s\v(Uii  on  Ix'lialt"  of  (ireat  Mrit- 
ain,  on  cn-ss-cxaniination  was  aski'd  it'  he  lia<l  made 
an  atHdiivit.  a  fo|i\  of  wliicli  appeared  in  the  pro- 
oeedinii's  of  tlie 'rril)unal  of  Ail)itniti<»n  at  Paris,  lie 
re])hed  tliat  lie  had,  and  that  the  statements  contained 
in  it  were  trne.  I*arii<irapli  S  uf  the  alii(hivit  contains 
the  foHowino': 

K.,  052,  line     I  am  sure  that  I  don't  shooi  at  one  out  of  fifty  seals  that 
51>  I  see;  probably  not  one  out  of  a  hiuidred. 


LNCERTAIN   CHABACTKK   OF   SEAL    HUNTING. 


20i) 


('apt.  \V.  K.  Bilker,  tt'stifyiiifi'  as  to  the  iiKxliHca-i'-.-.J^K,  line 
tioiis  wliicli  cuter  into  the  eatcli  in  Herinji'  Sea,  stated 
tluit  "tlie  seals  are  wilder  .sometimes  tlian  at  other 
tunes.'' 

(Jiddinir  ('.  (Jerow  testified: 


You  may  be  amongst  lots  of  seals  and  not  kill  any. 
His  examination  also  contains  the  tollowin"*: 


K..  149!(,  line 
15. 


Q.  You  were  going  to  tell  us  that  there  were  many  .seals  i;.,  uitg,  line 
around  the  boat  and  that  you  could  not  get  any.    What    -'• 
observation  have  you  to  make  about  that? 

A.  I  was  merely  going  to  say  that  you  might  be  in  sight 
of  hundreds  of  seals  and  you  could  not  jjossibly  get  one. 

Q.  Whyt 

A.  On  acicount  of  the  wind,  and  on  account  of,  sometimes, 
their  traveling;  and  you  may  see  thousands  of  them  and  you 
can  not  get  a  seal. 

Q.  There  may  be  seals  all  about  you  and  you  could  not  get 
any  of  tliem  t 

A.  Yes. 

The  importance  of  the  weather  in  determiniu''-  the 
success  of  huntinji'  in  Herinji'  Sea  is  referred  to  liy 
several  witnesses. 

Alexander  lleppeii,  already  cited,  testified  as  follows 
upon  this  suhjeOt: 

Q.  While  you  were  in   the  sea  were  there  many  calm 

daysf  ]{.,  310,    Hue 

(S. 

A.  Not  very  numy.  H-:  311,  line 

Q.  Did  you  have  worse  weather  [in  August]  than  you  did    •'"• 
in  .Fulv? 
A.  Yes. 

Q.  Did  your  sealing  end  about  the  10th  of  August? 
A.  About  that  time  I  think. 
Q.  Y'^ou  went  out  of  the  sea  on  the  loth  of  Augusts 
A.  Ye.s. 

Q.  Y'ou  stated  that  you  were  there  several  days  waiting  for 
I  weather,  did  you  not! 


goodi 


A.  Yes. 

Q.  And  the  good  weather  did  not  come? 


20Ci  UNCERTAIN    ('HAKACTEK   OF    SEAL    HUNTINU. 

A.  No. 

(}.  So  vou  went  «)iit  of  tilt'  sen  f 
A,  Yi's. 

(;.  It  was  hail  weather;  that  was  the  chiel'  reason  why  you 
left  the  seaT 
A.  Yes, 

Tlio  witiu'ss,  ('.  N.  Cox,  to  whom   rctbronco  has 
been  niiulo,  was  asked: 

W.,_OOS,  liiip     (}.  Vou  (li<l  not  tliiiik  that  because  you  take  seals  in  one 
^'  part  of  tlie  luoiith  that  tliat  is  any  intlieation  that  you  would 

take  tiieni  in  another  part  of  the  month  f 
A.  A  j{reat  ileal  depends  on  the  weather. 

Ht'iiriiifi-  upon  tho  wi-athiT  roinlitions,  jiiul  I'spc- 
I'ially  iii)<»ii  tlu'  tViMiui'iicv  ami  <h'iisity  of  the  t'o^s 
whicli  ]>revail  in  tlu-si'  waters,  is  evidoui'i'  relatinji"  to 
the  I'oninioii  occnrrcncc  of  tlii'  hiss  of  i-anoi's  wliilo 
luintin<>'. 
H.,_7n(i,  litK'  Captain  Laiijililin  Mi'Li'an  said  tiiat  hi'  >  ''od  up 
fonr    caiini's    which     had    Iti'i'ii    h)st    fro  'otlior 

vi'ssi'I. 

K..  tj"i,  lino  Captain  Mrlvii'l  tt'stirti'd  that  •UuMnj''  his  V(»va<;o  in 
ISSII  hi'  h)st  three  eanoes  al)ont  tlu'  liUli  of  Aujj'ust. 
He  was  asked,  "Was  that  with  tlie  men  in  tliem,  or 
did  tliey  simply  <^i>  adrift .'"  and  re})lied:  "The  men 
.vent  a<lrift;   we  l(»st  them  in  a  foj;." 

K..tii.'>,iiiif3.  (Justav  Hansen  stated  that  dnnn<>'  tiie  ernise  of 
the  Allele  in  18SS  he  lost  a  eanoe  and  spent  a  week 
searchinji'  f(.r  it,  and  that  lie  was  cnmpelled  for  this 
reason  to  cease  luintiiifi'. 

Captain  W.  K.  IJaker,  asked  as  to  the  continf^oncies 

K.,  72S.  linewliich  enter  ii\to  the  lunnher  of  seals  taken,  stated, 
-^"  "The  weather  for  one  thinj:'." 

(J.  And  rain? 

A.  Wind  and  weather. 

i).  And  log;  1  suppose  you  will  include  that? 

A.  Yes,  sir. 


UNCKRTAIN   ClIAKACTKk   OF    8EA1.    HUNTING.  207 

J.  I).  Wiirrcii,  iiftcr  listuiiiii";-  to  tlic  tctstiiuoiiy  of 
the  witness  Hrii^iy  rcliitiii;;  tn  1H8(!,  was  asked: 

Q.  Dill  you  hear  the  testimony  of  tUo  witness  Ciiptaiii  n,  2si,  iinv 
lira^i};,  this  inorniii}?,  iTKurdiiifj  the  days  in  tliat  year  wlien     ■' 
it  was  iin|Missil)li'  to  do  any  sealing' 

A,  Yes,  I  lieard  iiim  name  bad  days  tor  him,  when  1  Imd 
good  sealing  (hiys, 

IJelatiii;;'  tn  tin-  cliauce  of  iiiifliii};'  seals  in  altuii- 
(liincc,  tlie  witness  Alexander  Heppen  testitiod: 

(}.  Are  the  seals  thieker  in  one  quarter  than  in  anotlier  ?(;.,  :ii(»,  line 

A.  No.  r,\. 

(j.  It. just  happens  that  you  run  across  a  number  of  seals, 
and  stay  there  for  awhile? 

A.  Yes,  sir. 

l}.  And  then  you  go  sixty  or  seventy  miles  in  another 
direction :' 

A.  Yes,  sir. 

Q.  And  then  lie  to  and  send  out  your  canoes? 

A.  Yes,  .sir. 

Q,  And  then  you  stay  there  a  day'? 

A.  Yes,  sir. 

i).  And  if  the  seals  are  thick  you  stay  there  two  days? 

A.  Yes,  sir. 

<i>.  And  .sometimes  more? 

A.  Yes,  sir;  sometimes  more. 

I).  Anil  then  you  pick  uj)  your  canoes  and  move  off  sixty 
or  a  hundred  miles  in  another  direction '! 

A.  Yes. 

("apt.  liaufihlin  Mcl.ean,  in  his  cross-exainination, 
oave  the  f(illowin<"'  testimoiiv  ; 

(),  You  don't  mean  to  say  tliere  are  any  stated  courses  inl<.,J^;<-,  I'ue 
Bering  Sea  on  which  a  vessel  sails  each  year  when  .she  is     ''• 
sealing,  do  vou? 

A.  Xo. 

i).  As  a  nnitter  of  fact,  you  go  at  random,  wherever  you  can 
tind  seals,  do  yon  not  ? 

A.  Not  exactly  at  random.  For  instance,if  1  go  into  Bering 
Sea  next  year  (  will  crui.se  around  where  1  saw  tlieui  the 
most  this  year.    If  there  are  none  there  I  will 

(}.  If  you  Imppen  to  get  some  seals  last  year  where  you 
never  got  any  betbre,  would  you  go  there  this  year? 

A.  Certainly. 


'. 

gfW 

. 

!.'■'   s'i'   ' 

r 

'■, 

t    ^ 

208 


UNCERTAIN  CHARACTER  OF  SEAL  HUNTr.IG. 


Q,  Tlieii  you  would  jjo  where  you  thought  you  would  have 
good  luck ;  is  that  it? 

A.  Well,  1  would  prospei^t  arouud  uutil  1  tbiiud  some  seals, 
and  it'  I  liud  euough  to  warrant  my  stayiug  I  would  stop. 

Ciipt.  (.'.  N.  Cox,  l)eiiijf  cross-oxainiiied  as  to  tlio 
cotitiii;ieiu'i('s  which  attV'ct  the  catch  of  seals  in  iicriuj)- 
Sea,  testitietl: 
R.,  008,  Hue     Q,  And  there  is  a  great  deal  of  luck  iu  it? 
^^-  A.  There  in  a  certain  amount  of  luck. 

Q.  .\nd  there  in  a  chance  of  tiuding  where  the  seals  are 
and  getting  them  ? 
A.  Yes,  sir. 

In  that  portion  of  tlie  redirect  exaniination  of  this 

witness  wliicli  has  ah'cady  heen  (jiioted,  attention  is 

R.,  612,  iino(..ill(.(l    fo   his    statement    tliat    he    considered    "the 

GO 

chances  jire  wliether  the  captain  stays  amonfi;  them 
[the  seals]  and  f^ets  them  or  not." 

('apt.  \V.  K.  liaker,  already  referred  to,  testified  as 
follows: 

R.,  728,   line     (^),  Would  you  say  there  was  any  luck  in  running  across 
•^^'  the  seals  when  you  are  looking  for  them  on  your  schooner  ? 

A.  Yes;  a  good  deal.     They  call  it  luck. 
t).  A  good  deal  of  luck,  is  there  not? 
A.   Yes,  sir. 

Till'  cttntMijicMcies  which  enter  into  the  speeidation 
of  how  many  seal  skins  may  be  secured  during  a 
hnntinji'  cruise  in  Berinj''  Sea,  which  have  lu'en  pre- 
sented in  detail  with  the  sul)stantiatiii<'-  evidence,  may 
be  brietly  sununarized  as  follows:  The  smallness  of  the 
vessels  employed;  the  extraordinary  perils  of  a  voy- 
aj^e  to  and  criii.se  in  Herinj''  Sea;  the  experience  and 
skill  of  the  master,  liunter.s,  and  crew;  the  unrelia- 
bility of  Indian  hunters  throuj^h  their  ijiiioraiice  and 
superstition;  the  fre([iient  inclemency  of  the  weather: 
the  jtrevalency  of  foj>'s  and  rain;  the  condition  of  the 
animals  when  hunted,  and  the  uncertaintv  of  findinj^' 
.seals.  These  continjrencics,  the  Tnite*!  States  claim, 
are  of  such  a  naturi'  as  to  make  iinpossil)le  any 
method  of  computin<>'  an  estimated  catch,  which  will 
be  just. 


NO  DEFINED  "SBALINO  GROUNDS"  IN  BERING  SEA. 


i 


'IMie  ArjiUiuoiit  <»n  IrOiiiU"  ot  (Jiv.it  Britiiiu,  in  that 
portion  iMititlctl  "'I'lic  clianictcM-  and  extent  of  the 
sealing  srrounds  in  IVriny  Sea,"  endeavors  to  do  a\va\' 
with  one  of  the  many  eontin^i'encies  tliat  enter  into 
the  proldeni  of  estiniatin<i'  a  prohalde  catch.  It  shonld 
Hrst  l)e  ol)served  that  tiie  emidoynient  of  the  words 
"sealing-  <ironnds"  is  a  misuse  of  laniiiiaj^c,  whicli  has 
Itecome  common  to  seahng  captains,  and  has  often 
been  M(hipte<l  hv  others  tln'out>'h  tlioujuhtU'ssness  or 
iijnorance  of  the  character  of  seal  lumting.  The  word 
"iiTt>unds,"  applied  to  a  sea  area,  conveys  the  idea, 
to  one  not  ^'amiliar  wirh  the  occupation  of  procuring;- 
sealskins,  that  it  jiartakes  of  the  nature  of  tishin;^' 
iirounils,  imi)lvinj''  shoals  or  liaidvs  altonudini;'  in  va- 
rious  s])ecies  of  tish.  ihit  in  the  area  of  Herinji'  Sea, 
where  seals  are  hunted,  the  charts  submitted  before 
tiu' Couunission,  which  </'\r  soundinj^s,  demonstrate 
that  no  such  banks  exist.  It  is  also  to  be  noted  in 
connection  with  the  misuse  of  the  term  "sealing 
iii-ounds,"  that  there  is  a  similar  misappliauce  of  the 
words  "fishinii"  and  "tishery"  to  the  occupation  of 
hunting'  seals.  '^I'hat  sealinii'  partakes  of  none  of  the 
|trincipal  features  of  Hshinj:',  and  that  the  waters 
where  seals  are  shot  are  in  no  way  analoiious  to  "tish- 
iny  Itaidvs"  or  "lishin;^'  <i'ronnds,"  lint  possess  ratlier 
th  •  character  of  "whalinji'  jirounds,"  are  eviilent  to 
those  who  have  become  familiar  with  seal  life  and  its 
destruction. 

The  Ariiumeiit  on  behalf  of  (ireat  iJi^'^in  attempts 


to  establish  in  this  chM]tter  that  then 


an 


ted 


ireas 


m 


Herinu'  Son  wiien-  seals  can  at  all  tinu's  duriu"'  the 


i. 


Jt  s- 


—117 


•Mi) 


210 


NO    DEFINED    '"SEALING   GROUNDS      IN    HKHINCi    SEA. 


iiiontlis  (tf  .Tilly  jiiul  Au^i'iist  Itc  tniiiid  in  sutHcit-iit 
iiljuiidaiH'e  ti>  WiiiTiiiit  this  lliiili  C'oiiiiiiissioii  cstiiiiiit- 
ing  the  ju-ohabh'  mmilu'i-  of  skins  which  ji  seized  nr 
warned  vessel  inijiht  have  taken  it'  he?'  vovajiv  had 
not  ])een  interrupted. 

'J'iie   jHirtion    is  divided   into   two   parts,   the   tirst 


)(• 


dealinfi'  with  supposed  localities  wliere  seals  niav  1 
found  in  ahundance  l)y  the  liiniters,  and  the  second 
atteinptin<^'  to  demonstrate  how  plentiful  the  seals  are 
in  these  areas. 

The  endeavor  is  made  to  establish  the  iirst  propo- 
sition hy  several  (piotations  from  the  case  of  the 
United  Sti!tes  at  I'ari.s  which  may  he  hrietly  state(l 
t(i  alHrm  that  seiils  are  killed  l»y  the  hunters  at  lon^ 
distaiic<'s  from  the  rookeries.  That  this  position 
assinned  in  the  case  of  the   I'nited  States  is  correct. 


an  exj!  mnation  o 


f   tl 


e   testnnonv 


tak 


en 


l.ef 


I  ire 


:h 


line  49, 


Connnissioiiers  tully  suhstantiate.x.  hut  that  it  Itears 
upon  the  (piestion  under  iliscnssioii  is  denied. 

The   next   class  of  e\  idence    pro(luced  consists  of 
certain  charts  sul)mittt'<l  with  the  rnited  States  case 

Tile  iirst  ot'  these  referre(l  to 


Br  Ar>r.,  .-,7,  ;it  the  I'aris  Trihuni 


is  a  "miiiration"  chart,  which,  it  is  stated  in  the  Argu- 


ment   on    hehalf  of  (ireat    Ih'itain 


tws    that    tli( 


sea 


Is  in  .luly,   .\ni;'iist,  and  Se|)teml)er  of  ISKl   wer( 


oDserxiMi 


liy  the  patrol  ve 


■Is  ot'  the    Tnitecl   Sti,te> 


to  ha\('  heeii  mosth'  in  the  position  al)o\e  referred 


to. 


Tl 


lis  statt'inent  is  nndoiili 


tedb 


an  error,  a.« 


irt   to  w 


hich 


reference   is   inaile    is   nuiiilier 


III 


volume  3,  Amei'ican  reprint  of  tiie  I'aris  Triitunal. 
No  refen-iice  is  made  in  that  chart  to  the  vessel> 
ihich   jiatroled   the  sea   in  1S91,   while   there   is,  at 


oaii'e    (>02   of  the   same   vohinu 


summai'X'   i 


A-  th 


data  contained  in  the  chart.     That  it  was  <if  necessitx 
conventional  in  construction  and   nicicly   sn^'ii'estivc 
<tf  the   snjiposed   route   ot'  the   ini<;ratin^'  seals  froii 
.January  until  .Inly  is  apparent  t'roiii  an  examinatioi 


on 


NO   DKKINKD    "SKALIX(;    GROUNDS      IN    BKRING    SEA. 


211 


of  tlie  (liitii  troin  wliicli  it  Wiis  constnictt'd.  FiirtluM'- 
iiiore,  in  the  cniintc'r  ciisc  of  the  rniti'd  Stiiti's,  iit 
pnjiV  10"),  tlu;  followiiifi'  stiitcineiit  appciirs: 

From  the  fiutlier  data  mentioned  above,  a  new  migration  "^^g' 
chart  lias  been  drawn,  corrcetinfj'  and  modifying  the  one  of 
the  Tnited  ^^tates. 


l{.,  215,   line 


This  latter  cliart  suporsecU'd  tin-  one  put  in  evidfiu'e, 
and  is  discussed  at  another  jHaee. 


lir.  Arg.,  58, 


The   second   chart  referred   to    is   thi-  <uie  termed     Hue  i 
''sealing-  diart."     An  examination  of  what  appears  in 
tliis  cliart  fails  to  disclose  any  purpose  whatsoever  for 
placinji'  it  in  evidence, 
sea 


That  tl 


le  seals  an-  tliorou<iin\ 


ttered  in  Herinii'  Sea  at  distances  of  more  tiian 
•2(10  miles  from  the  islands  appears  fr<im  the  data 
platted,  hut  the  con\ cntional  use  of  shoi't  lines  to 
indicate  the  munlier  of  seals  counted  durini;'  a  day 
should  not  l)e  miscoustnie(l  into  a  statement  that  the 


seals  are  in  ham 


•f  that  numher. 


With  til 


IS  e\|)laiiation,  thi 


mted  States  are  wdlin; 


to  rest  upon  the  facts  disclos 


(Ml  h\- 


tl 


le 


■icaliiiL!'  chart 


■  Hi-.  Aru..  58, 
line  1». 


The  tliird  chart,  on  which  are  platted  the  pitsitioi 


where 


>ritisli   am 


IS 


mcricaii   \cssels   wei'e  sei/.cd   or 


warned    m   the   \( 


1   Ai 

ars    ISSC,    ISs; 


am 


intoii 


tl 


le   (illestioil   o 


f   til 


;kii 


ami 


1    ls,S!),    hean 
f  ti 


iiiliistrv  o 


le 


riiited  States  revenue  ollicers  in  iiitei  <  ciitiii"'  tlie  seal 


lUf!:  ves.s( 


Is  after  tlieir  entrance  tiiro 


tile   most  easterly   id'  tlie   ) 


),isses. 


u-i'li 
and 


L' 


nimaK 


r 


thereforr    tin 


Ilea 
invaria 


rest   to   \'ictoria    and    San    l''raiicisco,  aiK 


hlv 


used  l)\-  sealiiiL;'  era 


1  ahno>r 
ft  wiieii  eiiterinti'lhe  sea. 


111.  Arg.,  58, 


Tile  foiirtii  ciiart  ret'erreil  to  is  tiiat  of  the  cruise  (d'  'luu.  i.i 
tlie   I'nited  States    sciiooiier    Klhit  in   the  season  (d' 


ISS 


(. 


'I'i 


le  sea  ar( 


a  co\cred    1)\-  iier  cr 


uise  IS  coiii- 


parativeh'  limited    and    lier  catcii   as  shown   1)\-  tl 
(•iiart  was  inconsideral)le. 


The  hftli  chart  is  tiiat  of  tiie  cruise  id'  tlie   I'liiti'd 


Hr.  Arg.,  58, 
line  -20. 


Stat 


es  schooner  Annie  in  tiie  same  vear. 


lie  vesse 


appears  to  iiave  never  ajiproaclied  witliin  ll'O  mile^ 


I  m  '\: 


212 


NO    DEFINKI)    "SEALING    GROUXOS      IN    HERIXG    SKA. 


Br.  Arg.,  58, 
Hue  24. 


IJr.  ArK.,  .-.8, 
liuo  21). 


Am.      Kc))., 

vol.  7. 

Br.  An;.,  r.8, 

line  L'9. 


Am.      l\'ep.. 

vol.  7. 

Br.  Arj;.,  58, 

line  m. 

Am.   U  0  ji . , 

vol.  7. 
Br.  Ai({.,  58, 

liuo  10. 


of  the  Prihilot'  Islands.  Tlio  jiiva  coverctl  in  licr 
cruisi^,  which  lastt'd  t'orty-tonr  (hiy.s,  cxU'iid  tor  12(t 
miles  iiorlhwi'st  from  Akntan  I'ass  and  abunt  tlie 
same  distance  southwest  from  a  line  drawn  from 
Unimak  i'ass  to  the  I'rihilof  Islands. 

The  sixth  chart  is  of  the  cruise  of  the  Hritish 
schooner  Alficd  Aihttiis,  on(»  of  the  \'essels  seized  in 
1887.  An  examination  (tf  the  course  which  the 
schooner  took  after  entering-  lierin<>'  Sea,  coin])ared 
with  that  of  the  Klloi  iuid  the  Annie  already  referred 
to,  shows  that  the  area  covered  was  suhstantiallv  dis- 
tinct and  separate  from  the  other  two. 

Tile  seventh  chart  is  that  of  the  cruise  of  the  Aihi, 
one  of  the  Hritish  vessels  seized  in  18S7  b}'  the 
United  States,  and  for  whicli  a  claim  is  made  before 
this  Ilio'h  Commission.  The  crui.se  of  this  vessel  was 
entirely  ditt'erent  from  those  of  the  other  three  schoon- 
ers referred  to.  She  covered  durinj;' the  period  from 
ir»th  of  July  to  the  2r)tli  of  Aujiust,  when  she  was 
seized,  an  area  extendinji'  lAO  miles  northwest  from 
I'nimak  I'ass  and  fully  lOO  miles  west  from  1G4 
3(1'  west  lon;iitnde. 

The  eijihth  chart  referred  to  ischart  No.  1,  counter 
case  of  tlie  I'nited  States  at  Paris.  It  demonstrates 
that  in  connection  with  the  ])atrol  of  the  sea  in  the 
year  1S91  the  onlv  coaling;'  station  in  the  eastern  part 
of  Uerinji'  S(>a  is  at  I'nalaska,  in  lliuliuk  Iiarb(»r. 

The  nintii  chart  referred  to  is  No.  i{,  counter  case 
of  the  I'nited  States  at  Paris,  and  establishes  the  same 
fact. 

The  tenth  chart  is  No.  fi,  counter  case  of  the  Pnited 
States  at  Paris,  and  is  of  value  in  showing'  how  far 
seals  wander  in  search  of  food  from  the  Pribilof 
Islands,  beariiit:'  in  mind  that  the  dots  used  to  indicate 
the  seals  seen  do  not  represent  herds,  but  the  number 
ob.served  by  a  ves.sel  in  any  ;:i\en  day.  For  exam])le. 
at  i)b~  10'  north,  and   KiS"  cast,  there  appears  to  be 


NO   DEFINED    "SEALING   OKOUNDS      IN    HEKING   SEA. 


213 


a  mass  of  souls.  Tlic  aiva  ('(tvcrofl  by  tlicse  convcii- 
tional  (lots  is  20  miles  ](>ii<>'  Jiiid  12  to  15  wide.  The 
number  of  dots  is  102,  t»r  an  averajiv  of  about  one 
seal  t<»  every  2  sijuare  miles  reju'eseuted. 

'I'lie  elex'entli  chart  referred  to  is  the  eorrected **';•• '^■'r,' 5^' 
"mij>ration  cliart  sultmitted  witli  the  counter  ciise  or 
the  Tnited  States  at  Paris.  The  statement  as  to  how- 
it  modifies  the  tirst  miji'ration  chart  submitted  with  the 
case  of  the  Tnited  States  is  substantially  correct, 
althouji'h  there  apjjcar  included  the  months  of  Novem- 
ber, Decembi'r,  and  -January,  which  are  not  shown  in 
the  first  chart,  'i'iie  same  conventional  method  is 
emploved  in  phittiny'  the  course  of  the  uiiji'ratinji' 
animals.  The  ])ur))ose  for  which  these  two  charts  are 
submitted  is  indicated  in  the  Arjiument  on  behalf  of 
Great  Hritain  in  the  followiu<.;'  lan;iiiaj:e: 

It  surticir^ntly  inrticates.  as  well  as  the  migration  cliart  itr.  Arg.,  59, 
first  referred  to,  tlie  (ioinparatively  limited  s])ace  between    Hue  i- 
the  pass  of  the  Aleutian  Islands  and  the  Pribilof  group,  in 
which  seals  are  found. 

Reference  to  the  data  from  which  these  charts  were'^"'-^«i'-.','°^- 
prepared,  liiven  ni  the  case  ot  the  I  mted  States  at 
I'aris,  shows  that  the  charts  only  referred  to  the  seals 
outside  of  Meriiifi'  Sea.  There  is  no  warrant  for  the 
statement  contained  in  the  British  Arjiument  as  shown 
bv  the  data  in  the  lijiht  of  which  the  charts  must  be 
examined,  and  there  is  no  jiround  for  the  contention 
on  the  i)art  of  Cireat  Hritain  that  a  "stream  of  seals" 
exists  between  the  eastern  passes  of  the  Aleutians 
and  the  I'ribilof  Islands. 

Furthermore,  the  extract  from  the  case  of  the'^'j-.^^^J/'g' ^9, 
United  States,  (pioted  in  the  Ar<iument  on  behalf  of 
Great  Mritaiu,  in  connection  with  the  fore<>oin<if  state- 
ment demonstrates  conclusively  thnt  the  chart  re- 
ferred to  seal  mi<iration  oidshli'  of  Berinj>'  Sea,  the 
data  from  which  they  were  prepared  bein<i'  particu- 
larlv  referred  to  in  the  extract. 


If" 

■  .1 


;   ^  -r 


214 


NO    DEFINED    "SEALINO    GROUNDS      IN    BERING   SEA. 


Br.  Arj;..  5!t.  Rt't'eruuces  are  iiiiuU'  in  rlio  opposing  Argument  to 
eertain  niai)s  prcpju-ed  by  Mr.  C.  Il/rownsend,  of  the 
United  States  Fish  Connni.ssion.  The  first  of  tliese 
coniains  data  .so  meager  as  to  be  jmietically  of  n(»  value 
for  the  purpose  for  whicli  it  is  eited.     The  higsof  oidv 

8en.Doc.i.^7.  two  vessels  are  used  for  the  years  ISSO  and  18S7— 

Hr.  Arg.,  io;!  thosi'  of  the  M((n/  Klliit  and  Farouriie — as  is  shown 
by  reference  to  tiie  diita  from  which  they  are  platted. 
It  would  ap])ear  that  in  this  jMirtiou  of  the  liritish 
.Vrgunient  tiie  Fdrmiiiic  itiii(iIii''iI  on  the  so-cidleil 
•■scaHng  gmunds"  in  lSS(i,  which  is  a  position  con- 
trary to  tiie  one  assumeil  in  di.scussing  that  claim  in 
detail. 

i'lie  second  Townsi  nd  map  is  l)ased  on  data  for  tin- 
Near  18!>4,  iuid,  though  conventionid  in  constructiou, 
it  shows  one  important  fact,  namely,  the  area  of  sea 
ovei'  which  scalers  hunt. 

The  third  map,  for  181);").  is  useful  for  the  same  pur- 
pose. The  references  to  the  month  of  SepteudxT  in 
1S94  are  borne  out  by  the  data,  but  the  year  is  so 
remote  trom  the  period  of  this  discussion,  and  the  evi- 

B.,12.")7,  lino  deuce  as  to  catch  and  din'ation  of  the  season  having 
been  specitically  limited  by  the  ( "onunissioners  to  the 
\-ear  lsf)(),  the  use  of  this  map  for  any  |)urpose  other 
than  to  show  the  extent  of  sea  o\er  which  seals  are 
distributed  is  unwarrant<'(l. 

Tiie  ne\t  evidence  advanceil  in  relation  to  localitio 
where  seals  are  "always  to  lie  found  in  abundance"  is 
an  exti'act  from  the  deposition  of  a  pilot,  who  was  eiu- 
]iloyed  in  the  Keveiuie-.Marine  Servict'  of  the  Tnited 
States  for  seven  years  preceding  August.  ISSII,  which 
he  gave  at  Sitka  in  that  year. 

It  is  first  to  be  note(i  that  1S86  was  the  first  year 
when  the  revenue  cutters  of  the  United  States  were 
emploxcd  in  cruising  for  sealing  \  <  ssels. 

In  the  second  place,  an  exaininarion  of  his  deposi- 
tion shows  that  he  had  peculiar  views  in  regard  to 
seal  life. 


I3r.  Arc., 
lino  i"i. 


Hr.  Arg., 
line  ;>3. 


15. 


i: 


NO   DEFINED    "  SEALING   GROUNDS      IX    BERING    SEA. 


215 


CO. 
line 


The  cliit'f  eiuk'iivor  (»u  tlu'  part  of  (iivar  liritiiiii  to 
establish  certain  dcHued  areas  of  sea,  in  whicli  seals 
can  with  a])proxiniate  certainty  be  fouml,  is  l)ase(l 
upon  oral  evidence.  Testimony  of  this  class  is 
divided  into  two  hea<ls,  those  coniprisin<;'  general 
statements,  and  those  specifyinj:-  the  areas  and  posi- 
tions where  st-als  were  taken.  r|)on  this  latter  class 
the  Arjiument  on  behalf  of  (}reat  Britain  rests  in  its 
consideration  of  this  subject.  The  witnesses  (pioted 
in  the  Arjiunient  and  the  substance  of  their  testimony 
is  as  follows: 

Hra<i'<i'    li'ives   his   position   dnrini;-   the   year    iSSfi 
(erroneouslv  cited  as  ISHS  in  the  Hritish  Ar<iument)  "'•'^''S- 
as  cast  of  the  Pribilof  Islands  and  south.  '^s,^'"**' 

Warren  j;ives  his  direction  from  the  islands  tor  tiiei'-.-'^i- 
Year  18S(I  as  southeast  i\nd  smith. 

An  examhiation  of  the  cruise  of  the  schooner  of  "••-'^i- 
which  Warren  was  master  shows  that  he  covere(l  the 
>i'a  in  his  operations  from  ')\  to  ')(>  .")'  north  lati- 
tude, and  from  164"  l»t'  to  1()8"  30'  west  ioniiitude. 
It  is  ai)])ro\imately  an  area  of  sea  extendin.i;'  150  miles 
east  and  wi-st  and  l'_M)  miles  north  and  south. 

0"Learv  ;:ives  his  position  in  ISSIJ.  duriui;' duly,  jis ''i  :;,'j-'. !'""» 
DO  miles  'nrst  of  the  Pribilof  Islands,  and  in  .\u^ust 
as  120  miles   soiitli   of  the  islands:   coN-eriu^-,  tliere- 
fore,  an  area  over  l'OO  miles  in  len,ii'th. 

Kandase,  on   the   I  liirrsa  m   lss(),  ^ives   lier  posi-    ,j(_ 
tion  at  about  125  miles  sunth-soiitlicdst  of  the  islands. 

Keppen  states  that  the  vessel  he  was  ujion   scided 
urst,  north,  cnst,  and  south  of  tlie  islands,      lie  o'ives  n.^^:'!".  !"'» 
but  one  distance,  and  that   150  miles  from  the  Pril)i- 
lof  Islands. 

Moss  is  cited  in  the  Argument  on  behalf  of  <Ji'eat  "'iijj^^.'f.: 
Ih'itain  as  to  the  cruise  of  the  Faroiiritr  in  1SS6.     As  Ex.    No. 
the  log  of  the  Faroiiritr  is  in  evidence,  it  is  of  unwh    ' 
more  value  than  any  statement  made  l)y  a   hunter. 
The   log  discloses  that   the   I'liroiiritr   sealed  to  the 
■•^oiithivrst,  .south,  and  southiast  of  the  Pril)ilof  Islands, 


61, 
8 


|.i-i;:nr'  ( ; 


5'-:i 


I;.:: 


•21(1 


NO   DEFINED    "SEALING   CJROUNUS      IN   BEUING    SEA. 


R.,  526,  line 
55. 

B.,  1728,  lino 
58;  1731, 
line  47. 


Br.  ArK.,  61, 
line  X. 

!{.,   ()71,  lino 
60. 


It.,  33:!.    lln. 
6.".. 


R.,  .".26,    lino 
.-.5. 

R.,  8IM.    lino 
32. 


i;.,  172S,  line 
r.S;  1731, 
line  17. 


R.,  721.  line 
10;  728,1  ino 
55. 


R.,  731,   line 
30. 


ooveriuf*'  im  area  exteiulinjr  over  17')  miles  t'roin  ea.st 
to  west. 

Hayiior,  on  the  San  T)iv(fo,  sealed  to  the  south  ami 
soiitlit'd.'^t  ot"  the  islands. 

Meyer,  master  of  t lie  VaiKlcrli'ilf'm  188(5,  stated  that 
he  sealed  to  the  castirdnl,  HortliiranI,  and  ivcsficfinl  of 
the  l'ril)ilof  I.>ilands. 

McKiel,  master  of  the  Mar/f  Tti/flor  in  1887,  <>ives 
no  actual  jtosition  as  to  his  .sealing-  in  that  year, 
althoujih  it  is  stated  in  the  British  Ar<>ument  that  he 
"ex]»lains  that  he  worked  in  the  vicinity  (»f  ')G°  north 
latitude,  177'  1'  we.st  lon<ritudo."  'Phe  testimony 
of  witness  was  that  he  sealed  fntin  40  to  lOO  miles 
west  of  a  line  drawn  from  L'nalaska  to  the  I'ribilofs. 
It  would  appear  that  his  ])osition  was  chiefly  soittli- 
ursf  and  soiifli  of  the  Islands,  and  the  area  he  covered 
altont  (10  miles  from  m.s7  to  irc.st  and  over  150  from 
itortli  to  stiKtIi. 

Moss  o'ives  the  ])osition  (»f  the  A'rt^'  in  1887  as  south 
of  the  I'rihilof  Islands,  and  distant  30  or  40  miles 
therefrom 

K'ayuor,  on  tiie  Allif  I.  Alficr  in  1887,  jiives  his 
position  ix^  south  of  the  IVihilof  Islands. 

Miner,  master  of  the  Pniclopc  in  1887,  gives  his 
position  as  .southwest  of  the  Islands,  and  distant  over 
100  miles  therefrom. 

Meyer,  who  is  not  cited  in  the  Argument  on  behalf 
of  (Jreat  Britain,  and  who  was  master  of  the  Vu)i<t('i- 
hilt  in  18S7,  states  that  he  .sealed  cast,  north,  and  ur^:f 
of  the  Islands. 

\V.  H.  Baker,  oil'  the  Viru  in  1888,  gives  his  position 
as  .siiufh  and  wist  of  the  Islands,  and  from  60  to  90 
miles  distant  from  them,  and  a(hls  that  he  sealed 
"  principally  west." 

Laiighlin  .McLean,  master  of  the  luirouiitc  in  1888, 
gi\es  his  position  for  that  year  as  west  and  south  of 
the  l'rii)ilof  Islands. 


'  \. 


NO   DKFINKl)    "SKALINU   GHuUXUS      IN    liEHINO   SKA. 


217 


R.,  tUii,    line 
2l>. 


lliU'kt'tt,  iiKistcr  of  the  Annie  C  Moore,  ;:'ivcs  liis'^>/'^i'  ''"« 
l)()siti<iii   tor   1S88  (or    18!l())  iit   ii    point    iilxmt    KM) 
miles  norfliiresf  of  the  Isliiuds. 

'^riit'  Trimiiftli,  in  ISSS,  iiccor(lin<>'  to  tlic  positions  of  R-> ''•'-• 
latitude  and  lonjiitude  jii\en  by  K.  ('.  Haker,  sealed 
soiitli  of  the  islands  over  an  area  lOO  miles  iiorfli  and 
soitfli,  and  the  same  distance  eo'^f  and  irexf. 

(Jerow,  who  hunted  in  ISSS,  states  that  the  vessel  K.,  int;!, 
sealed  \\\  erei-ji  dhertioii  from  the  i'ril)ilof  Islands.  ii""--'. 

Hansen  is  cited  in  the  Ar;^ument  on  behalf  of  ( IreatHr.  Ar^.,  ct, 
liritainasstatini^that  "he  hunted  to  the  southward  and  ''""  '•'• 
westward  of  the  l'ril)ilof  Islands,  about  (!(» to  70  miles 
distant;  after  that,  a  little  to  the  east.  The  direction 
was  about  north-northwest  of  Unimak  Pass.  This  was 
in  1SS8."  A  refereiu-e  to  the  marjiinal  citation  of  the 
Kecord  discloses  an  error  in  this  sununary  of  his  testi-^ 
mony,the  witness  intact  statinji' that  he  Innited  "par- 
ticularly to  the  soiitlnranl  an<l  iresfirard,  and  in  the 
latter  part  of  the  year  to  the  edsfirdrd."  His  exami- 
nation shows  also  that  he  was  speakin;i'  of  the  year 
ISS'.I. 

Uaynor,  in  ISSK,  <;ives  the  position  wiiere  he  was  H.,  r.i's, 
warned    as    about    100    miles  soitfli   of  the   Priltilof    '^'' 
Islands. 

W.  E.  Maker,  of  the  Viva  in  1SS!I,  sealed  ;nostlv«..  "-'»,  Hue 
sotiihinud  and  iresfirard  of  the  Pril)ilof  Islands,  and  k.,  tjs.  Hue 
distant  6<>  to  DO  miles  from   them,  but  i)rincii)ally  ..'"'^i,,    ,. 

1  '        •'   !v,,   ilil,   liiio 

west.  40. 

Laufihlin  ^IcLean  .sealed  to  the  tioitth  of  the  P.-ibi- 
lof  Islands  in  18S!),  and  about  100  miles  distant  from 
them. 

Fol<>er,  master  of  the  Penehpe  in  188!l,  states  thafK-.  w«:^ '"'« 
he  sealed  to  the  ivest  and  east  and  soidli  and  northwest 
of  the  Islands. 

Mackett,  master  of  the  Annie  C.  Moore,  t>'ives  hisKv  *>"'>  i'"" 
position  for  ISiJO  (or  18SS)  nbout  lOO  miles  northwest    '^'^' 
of  the  Pril)ilof  Islands. 
B  s 28 


lino 


I- 


I 


•218  XO   DEFINED    ".SEALING   GROUNDS"    IN    BERING    SEA. 


K.,  721, 
10. 

li.,  -jr., 
a7. 


Hr.  Arn., 
line  :I5. 


R.,  10711, 
(iO. 


l;..  758, 
10. 


R..  771, 
37. 


lino 
lino 

(U. 
lino 


line 


liuv 


W.  K.  linker,  iiiasttT  of  the  Vira  in  1S9U,  scaled  to 
the  in>^hr((nl i\\u\  .soiitlnrnnloi'  the  Islinids,  iukI  \H)  miles 
(listiiiit,  1111(1  ill  tlie  latter  |iiirt  of  the  season  fn»iii  40 
to  (iO  miles  I'ti.st,  in  wliieh  position  he  ai»i»arently  had 
his  Itest  hnntinji'.  The  extreme  |»oints  of  his  eriiise 
are  cited  in  the  iJritish  Aifiiiment  as  heinj;'  loO  to  MO 
Dliirs  (liHirt. 

Steele,  ma.ster  of  the  Tlirrcsa  in  1S9(>,  states  that 
he  hiinteii  to  the  ircstirard  and  xoiifjiivdril  ui  \\w  l*ril)i- 
lof  Islands  and  near  Moji'oslof  'i'lie  extent  of  the  sea 
covered  hv  him  in  his  seal  hunting'  appears  to  liave 
been  over  'JOO  miles  iiorlh  and  xaiith. 

^^'illialn  Cox,  master  (»f  the  Sap/iliiic,  states  that  his 
hest  .seal  hiintiiiii'  in  ISDO  was  to  tlie  iiortliirord  and 
iri'Kfininl  of  the  Islands,  althoii^i'h  he  "was  all  over  the 
sea,"  fi'oiii;^'  SO  or  !MI  miles  cast. 

Capt.  William  O'l^eary.  a  witness  sworn  on  behalf 
of  (ireat  Hritain,  states  that  in  18SS  he  was  ircst  of 
the  islands,  and  that  he  retnrned  there  in  ISiM),  bnt 
did  not  find  the  seals  "so  |)lentiful."  lie  then  .sealed 
to  till'  rashnin/. 

Captain  Miner,  a  witness  sworn  on  behalf  of  the 
United  Stales,  testified: 

I  sealed  entirely  uiouiul  the  islands. 

(}.  You  mean  north,  south,  east,  antl  westf 

A.  Ves,  sir. 

(^.  How  far  iiway  I'roin  them? 

A.  The  iieaiest  1  was  to  the  islands  was  40  miles. 

Besides  this  specific  class  of  testiinonv  tiiere  is  other 
of  n  more  "eneral  nature.     Mut  two  references  are 
itr.  Arg.,  66, 1'li'd*  ill  the  op]H>sin<i'  Ar«inment  to  this  class  of  testi- 
liucus.      niony:  one,  an  abstract  of  the  evidence  of  A.  11  Alexan- 
der, of  the  United  States  Fish  Comniissioii,  which  is  in 
■substance  that  Herinji'  Sea  durino-  the  months  of  .Tidy 
lir.  Arg.,  til,  i'lid  Au<iiist  is  fre(|iieiite<l  by  the  fur  seal;   the  other,  a 
line  21.      summary  of  th<' testimony  of  Capt.  Alexander  McLeaii, 
statinji'  that  his  best  huntinji-  was  about  60  or  7(*  or 
even  !•<>  miles  from  the  Pribilof  or  Aleutian  Islands. 


R..  .">8, 
16. 


liiio 


NO    DEFIN'KD    ".SEALING    (iHOUNDs"   IN    MERINO   SKA.         21  !> 

rpoii  the  .siiiiic  \y.\<j;v  in  tlic  Kcconl  wlioro  tliLs 
stiiti'iiiout  ofCni)t!iiii  McIa'Uu's  Jippears  the  t'ollowing- 
i.s  touiid: 

Q.  Can  you  in  your  oliseivation  in  shilling,  from  18S;{ down, 
tell  from  tlu;  seasons  prcct'ding  whetluT  you  will  in  the  com-  •*■,',  '"'  ''"» 
h\Si  .season  be  ahlt;  to  linil  seals  in  any  particular  i)lace  or    '"• 
zone  ? 

A.  I  don't  believe  there  is  any  certainty.     I  kept  the  book 
of  reference  for  thi.s  reason. 

(iJ.  Vou  kejjt  the  book  of  references  where  you  made  good 
catches  of  sealing? 

A.  Ves,  sir. 

Q.  And  ycm  have  been  there  again  in  the  .same  places? 

A.  Ves, sir;  placed  it  on  the  chart  thinking  it  might  be  of 
some  use  to  me,  but  found  it  was  not. 

().  Did  you  ever  (iiul  any  rule  wherebv  you  could  find  the' 
-seal  the  .second  time? 

A.  The  only  rule  I  have  found  was  that  if  they  were  not  in 
one  place,  to  go  and  hunt  for  them. 

Agiiin,  in  the  caso  of  Captiiiii  Raviior,  there  ni)i)eiirs  „     . 
111  the  o|)i)usiii;«'  Arjiuiuent  an  extract  trom  his  cross-    iino?5. 
examination  to  tlie  eH'ect  tliat  he  was  in  tlie  |)ositi(»n 
170'  west  lon<;itU(le  and  5;')'  north  hititnde,  when  he 
was  ordered  out  of  tW  sea,  hcanisc  that  is  a  sraliiif/ 
f/rninitl.     The  extract  is  closed  with  tlie  followino-; 

Q.  Of  cour.se,  and  you  went  where  you  knew  the  .sealing 
ground  would  be? 
A.  Why,  certainly. 

The  (|uestions  immediately  fidlowinji-  this  are  not 
cited,  i'hey  are  of  tar  more  importance  than  the 
sin;4'le  statement  as  to  Ins  position  when  warned. 
After  the  answer  (|Uoted,  Captain  Raynor  was  asked 
whether  the  sealin*'-  <)-round  was  coii'tiiied  to  certain 
limits,  to  which  he  re[»lied:  "Yes;  hut  those  limits «■,  5JN  line 
are  anywheres  from  the  iiorflwasf  of  the  islands  up  to  ^'*'' 
the  noiiliirt'-st  of  the  islands  and  to  the  southivaiil  down 
toward.s  the  I'rihilofs." 

ii.  The  Aleutian  Islands,  yon  mean? 
A.  Yes,  sir. 


:!H: 


220  NO    DKKINKI)    "SKALINO   OUOUNUS"    IN    HERINd    SEA. 


U8. 


liiiu 


]{.,  172!», 

1. 
U.,  I'M, 

r.i. 


lino 
line 


H.,   l.'r.7, 

L'!t. 
K.,  1766, 

30. 
If.,  177(1, 

2(1. 
K.,  1771, 

60. 
K.,  17t>7, 

34. 


K..  177y, 
2. 


line 
lino 
lint' 
linu 
line 

line 


|{('si(l('s  these  wituenses  referred  to,  <  'iiptiiin  Meyer, 
(if  the   I'diidiiliilf,  testified  its  tVillows; 

i).  i'aptaiii,  fioiii  your  exiu'iieiK^o  in  tlio  yj'ars  188(i  niitl 
18S7,  (1(1  you  know  of  any  place  in  the  sea  where  you  can  go 
in  one  year  and  find  sitais  and  then  return  in  the  t'olhtwing 
year  and  Ite  sure  of  linding  seals  there .' 

A.  No,  Hir;  I  do  not. 

At  iiiiotlier  |)hice  in  his  exiiniiiiiition  apjienrs  tlie 
t'(i]l(i\viii;i': 

■  ij.  And  if  you  found  seals  in  a  certain  h)cality  in  .luly, 
could  yon  jjo  back  there  in  August  and  be  sure  of  Hndin- 
them .' 

A.  No,  sir;  I  couldn't. 

<i>.  Have  you  tried  it  f 

A.  Yes,  sir;  I  have  tried  it  .several  times. 

lie  iidded  thiit  he  did  not  find  seals  at  those  phiees. 

Ill  his  cross-e.xiiiiiiniilion  the  witness  was  asked  as 
to  his  cruise  in  1887,  and  rejdied:  "S<mie\vhere  in 
the  same  h»cality  as  in  otlier  years  in  search  of  .seals." 
He  was  then  asked,  "  Voii  did  not  try  anv  new  firoiiiid 
at  all  .'"  to  whieli  he  answered,  "I  tried  new  otouikI 
every  day." 

Owen  'rh(»inas,  a  witness  sworn  several  times  on 
l)elialf  of  (ireat  Britain,  who  had  Iteen  pilot  on  the 
CantloKi  in  the  sprinj-'  (d"  1880,  hunter  on  the  I'lUtcl; 
DidHioiid  the  same  year  on  her  northern  trip,  mate  ot 
the  I'dtlijindcr  in  18S7,  master  of  the  /'afh/iinltr  in 
18.SS,  and  master  of  the  Ultalt  J)i(iiii(in(l  in  lS8i),  te.sti- 
fie(l  in  his  redirect  oxaniination  as  follows; 

Q.  How  is  it  that  your  catch  was  limited  to  about  5(10 
skins  in  1SS8  on  the  l'iitlifiii<lir  in  Bering  Sea? 

A,  Well,  I  could  not  .strike  the  seals;  I  could  not  get 
amongst  them,  1  suppose. 

If  the  sealino'  orounds  are  "well  known,"  as  as- 
.serted  in  the  Arj>uinent  on  l»ehalf  of  (Jreat  liritain, 
it  is  a  matter  of  conjecture  '  w  such  an  experienced 
sealer,  as  the  witness  Thomas  claimed  to  be,  could 
have  avoided  inakiii'''  a  successful  vovaue. 


:JL 


NO    UEl'lNED    "SEALING   GKOIIND8      IN    ItEIUNO    SEA. 


221 


("otHtunl,  diu'  »»f'  tlu'  liiiutcrsim  tlu'  ('(irnlnitt  in  lS8(i, 
and  iittcrwanls  ciijiiiiitMl  on  other  scaling'  vcswds,  was 
ankcd,  "Do  you  tliiiiU  that  in  licriii;;-  Sea  tlifiv  is»|^'''"'  ''"« 
any  jdacc  or  nunihcr  ol  jihu'cs  whon-  you  can  yo  as 
a  sure  tliin"'.  and  "ft  seals  everv  vear?" — to  wliicli 
he   answered: 


:fi»i 


I  (U»   not   think   there  is  anv   sure 


place. 

A<;ain,  re|)lyin<i'  to  a  (|Uestion  as  to  the  certainty  of 
getting;'  seals,  he  answered,  "It  is  certain  you  will  ji'et  "■-,;''*•'•  '""' 
seals,  but  there  is  no  cei-tainty  altout  the  amount." 

A.  li.  .\lexander,  already  referred  to,  who  has  had 
an  extensive  experience  in  Herin<>'  Sea,  and  made  two 
sealinji'  trips  in  those  waters  for  scientilic  pur|»oses, 
was  asked,  "Is  there  any  locality  where  seals  can '^-.j.'""'-  ""•^ 
always  he  found?"  to  which  he  replied,  "I  know  of 
none." 

Ca])t.  C  N.  Cox,  a  witness  on  Itelialf  of  the  (daim- 
auts,  in  his  direct  examination,  yave  the  followin<>' 
testimony: 


R.,  f)13,   line 

ir>. 


Q.  JIow  «l()  you  tiiul  the  seals  there? 

A.  Scattered  about. 

Q.  On  certain  grounds  '. 

A.  I  seUloni  find  them  on  tlie  same  ground. 

Captain    Folger,  who   was   suhpienaed  1)\'  Great 
Britain  and  the  United  States,  testified  as  follows: 

Q.  From  your  experience  in  Bering  Seu,  Captain,  will  you  K.,  losi',  line 
tell  the  Commissioners  whether  or  not  there  is  any  one  phice    '*• 
in  Bering  Sea  where  you  will  always  find  seals? 

A.  No,  sir;  not  where  you  will  always  tind  them. 

Q.  Is  there  any  such  idace? 

A.  The  seals  are  everywhere,  according  to  where  the  food 
is;  wherever  the  food  is,  tliat  is  where  the  seals  .are. 

Q.  Do  they  follow  the  food? 

A.  Yes,  sir. 

Alexander    stated    that   the   seals  are    practically '^ii'"'  ""^ 
surface  feeders,  and  that  their  food  consists  of  miji'ra- 
tor>-  fisli. 

Capt.   W.    K.   liaker   stated  that    he    thought  the    -U"  "°'' 
hunting  grounds  changed  from  year  to  year.     In  this 


ti  i    ;  1 


I; 


I  f' 


>22 


NO   DEFINED   ''SEALING   OROUNUS      IN   HEKING   SEA. 

coniKH'tioii   jittt'iitioii   is  railed   to  tli(?  exitcrience  of 
(,'iil)tiiiii  O'Lt'iirv  in  18S!»  and  ISItO,  already  cited. 

Ill  a  statement  made  Itetore  the  (Mtlleetur  of  cus- 
toms at  N'ictoria  in  1S!I"_>,  and  wliicli  ('a])tain  Maker 
in  his  examination  testilied  was  true,  appears  the 
folic  )\vin"': 


line 


(10. 


liii 


I  liavt'  iiotict'd  also  tliiit  tliey  [tlie  scalsl  cliaii;;e  tlieir 
^iroinitl  from  time  to  time,  and  wlicie  yon  liiid  tbein  this 
year  you  may  not  find  tlium  the  next.  Tliis  was  very  re- 
niarkaUle  dnriiifr  the  year  1S!H),  for  tlu^  s(-als  were  all  found 
til  tlir  iiishninl  of  tile  I'riliilof  Islands,  while  in  the  former 
years  they  were  all  found  to  the  westward. 

With  this  statement  the  testimony  of  Caittaiii  Wil- 
,liam  ( "ox  is  sijiiiiiicant: 

(,).  Where  did  you  tish  in  IS'.tO? 

A.  1  was  all  over  the  sea. 

i).  I>id  yon  jjo  to  the  westward  of  the  islamls;' 

A.  I  (lid,  sir. 

(^>.  Mow  far  east  did  vou  f;o? 

A.  About !»()  miles. 

i).  Did  you  eatcli  seals  there' 

A.  I  di<l  not  see  any. 

(i>.  In  wiiat  vear.' 

A.  18!  10. 

^i.  Ydii  ritiiiihl  iioiictdst.' 

A.  .V(t;(('. 


tl 


When  two  such  prominent  witnesses  on  liehall'  of 
le  claimants  ditfer  so  wideh'  as  to  the  locality  where 


als  conld  lie  taken  in  Isiio,  there  is  Init  one  coiiclu- 


>lo 


11  to  lie  drawn,  that  tliei 


('  is  no  persistency  m  the 


inndance  of  seals  in  aii\   sea   area  even  diiriiiii'  tli 


l!r.  An;.,  (id, 
lim>  17. 


K.,  HO!t,    lin 
3-1. 


same  season. 


Alexander  I{e)»pen,  a  witness  i'elie(l  upon  l»v  (ireat 
Ihitain  in  connection  with  this  (picstioii  of  the  locality 
where  seals  are  taken,  testilied  as  follows: 

Some  (lays  we  found  lots  of  seals  and  .some  davs  none. 
*).   Kin'ht  in  the  same  place? 

A.  At  different  places.  We  never  stopped  in  one  iilacu 
all  the  time. 


I  !  II  lift 


!' 


NO    DEriNEl)    "sealing    OROUNlKs"    JN    liEIUNG   SEA. 


223 


i).  Aro  tliere  any  itiirticular  limitiiif;' gnmiicls  in  tht  seiv,  ?K,,  mo,  liiif 
A.  ^'<»,  sir,  I  (Id  not  think  it;  wherever  voii  find  the  seals     "'• 
you  stay, 

Cji|)t.  Liiu<ililiii  .Ah'Lc'iiii  <.;;iv('  tlio  tollowiu-i'  tosti- 
moiiy: 

Q.  If  you  hai)i)ened  to  t>et  some  seals  hist  year  where  you  K'.,  m^,  line 
never  got  any  before,  wouhl  you  go  tliere  tliis  year:'  -'7. 

A.  Oertainly. 

Q.  Tiien  you  wouhl  go  where  you  had  good  hiek;  is  that  it? 

A.  Well,  I  would  prospect  around  until  J  found  sonu' seals, 
and  if  1  fouiul  enough  to  warrant  my  staying,  I  W(nild  stop. 

Oaptiiiu  Kayiior  stutt'd  tluit  lie  iievcr  in  successive  K.,  5lm,  liur 
years  liad  found  seals  in  the  same  place.  "• 

From  lliis  stnnmary  of  the  evidence  it  is  ii|t|)areiit 
that  the  sealinji' \essels  !ii'e  not  confined  to  anv  yiveii 
locality  in  their  hinitin^i'  voya;^'es,  mdess  an  aiva  con- 
tainin-^'  lifteen  or  twenty  thousand  scpiare  miles  can 
be  considered  a  detinite  "si'ulinji'  ground.'  A  refer- 
ence to  the  evidence  jiiveii  shows  that  seals  \\{'\v 
taW-ii  eveiy  year,  from  ISSC  to  18!M)  imdnsiv<',  imiili, 
Hoiifli,  cdsf,  ami  irr.sf  of  the  i'rihilof  Islands,  at  dis- 
tances raufiiuji'  from  (!<»  to  over  20(t  miles  therelrom. 
Tlie  attention  of  the  Connnissioners  is  pai'ticnlarlv 
called  to  the  Townsinid  chart  for  ]8!t4,  aiul  the  "seal- 
inji'"  chart,  No.  4,  of  the  <-ase  of  the  United  States 
at  I'aris,  both  of  which  were  placed  in  evidence  Itv 
Groat  Britain.  The  testimony  and  the  charts  denuui- 
strate  that  the  area  where  seals  are  hunted  in  Herinji' 
Sea  extends  from  Kif)  to  ITo"  ircsl  loni;itnde,  and 
from  ;");{  to  ■)!!''  i/ori/i  latitude, containinj^- from  140,00(1 
to  150,000  scjuare  miles,  fijiaif  iiHinn  (ijijnd.r'niiafrhi  fn 
the  Xorfli  Sen. 

The  Aro'inuent  on  behalf  of  (Sreat  Britain  sums  npiii-.  Aij;..  ti."., 
the  evidence  relied  upon  in  the  folhnviuji'  words:  '""'  ' 

Having  established  that  the  .sealing  grounds  in  liering 
Sea  are  well  known  and  Citnili/  defined,  it  is  projjosed  to  point 
how  plentiful  the  -seals  were  in  tho.se  sealing  grounds. 


f- 


224  NO    UEFIXEI)    "SKALING    GKOUXDs"    IN    liERIN'Ci    SKA. 

It  is  iis  littiuji'  t(»  term  the  oiitiiv  expanse  of  the 
Xortli  Sfii  !i  "tisliinj;  jiTound"  as  it  is  to  term  tliese 
waters  "scaliiiy  yroiinds;''  and  it  is  a  sinnifieant  fact 


that  (Ireat  Britain  fails  to  (h'line  the 
of  seal  a>)un(hnice. 


Br.  Ari;.,  li.- 
lini'  H2, 


a.ssumed  loea 


lity 


The  second  portiitn  of  tliis  part  of  the  Arji'nment 
mi(h'r  consicU'vation  deals  with  the  ahundnnce  of  seals 
in  this  area  of  14(t,0(»0  to  ir)(>,()(l()  s(|uare  miles. 

Duriii"'  the  niornin!'"  session  of  the  Iliyh  Commis- 
sion  on  l)ecenil)er  2,  ISIM;,  tln're  was  read  into  the 
record  on  behalf  of  (ireat  IJritain  a  deposition  of  .1.  II. 
I )otij>'lass,  the  revenue-marintf  jiilot,  already  referreii 
•  t  >.  In  that  appears  tlu'  statement  which  is  (pioted 
1:1  the  British  Argument  showinj;' that  the  seals  "are 
ii'  .dl  times  very  plenty  between  I'nimak  I'ass  and 
?,nd  Islands,  in  a  track  al)ont  thirty  miles  wide,  which 
•e"ms  to  be  their  hijihway  to  and  from  the  Islands." 

The  pictnre  of  a  "stream  of  seals"  3<)  miles  wide, 
extendinii'  throuiih  I'nimak  Pass,  and   thence  for. ISO 


miles  to  tlu'   I'ribilof  Islamls,   siiuficsts  many  | 


lOSSl- 


bilities  and  certainties  attendant  uiion  the 


occnpatiou 


of  si-al  hnntinji'.      If  snch  a  condition  I'xisted  in  realit\ 
hi  IXtSG,  or  at  anv  time,  it  can  not  be  nnderstood  why 


It  was  necessary 


for  th 


le  sealiiii'-  ves.se 


1st 


o  ever  enter 


the  disputed  waters  of  rierin;^-  Sea.      Lyin<^--to,  at  the 


entram-e  of  the    I' 


tlieir 


lH)at> 


wnn 


diort 


mter- 


vals  between  them,  extendinji'  like  a  chain  from  shore 
to  shore,  it  seems  as  it  tiie  axai'ice  of  the  sealer  and 
his  exa};-;.;erated  ideas  of  profit  mijiht  ha\-e  been  fully 
realized    in   the   slauiiliter  of  th 


The  fact  is  that  tli 


is 


e   miLiratmLi'  animals, 
never  occurre(l  in  the  history 


»f  pel; 

r 


lU'ic  sealinij-,  aiK 


d  that 


no  N'esse 


as  ever  liinite(l 


111 


inniak 


ass. 


riiat  this  deijositioii  is  suitaltle,  authentic  e\  ideiice, 


such  as  s 


houhi 


C 


onimissmn.  is  i 


receix'c   consideration  b\-   this    li 
leliied  b\    the  I'llited  States. 


mil 


W( 


o  weeks  a'ver  tins  deposition  w 


as  otfereil  in  evi 


NO    DKKINED    "SEAMNO    (iltOL'NDs"    IN    HKHING    SEA.  225 

(loncc,  ill  t\w  redirect  exjiininatioii  df  the  witness  Cliir- 
eiiee  N.  ('ox,  the  fullowinji'  ([uestioiis  were  iisked: 

(i.  Do  seals  herd  toKctlier,  as  Mr.  Wam-ii  siifrgo.sts?  K'..  i;i:f,  i„„. 

A.  I  liave  never  seen  tlieiii  that  way.  i 

<i.  As  a  inatterof  fact,  are  the  seals  you  get  scatteml  about 
Iiere  and  there .' 

A.   Y'es,  sir. 

<,).  (Jiiiiiing  hack  to  the  point  about  the  seals  being  all  in  i{    i;i;i    li,,,. 
a  iierd  togetlier,  is  tliat  the  rase  at  all  in  tlu^  months  of  ,lidv      i-'-    ' 
August,  and  Sei>teniber? 

A.  Never  in  that  way. 

I},  llow  do  you  (ln<l  the  seals  then  ? 

A.  Scattered  about. 

<i>.  On  certain  grouinls? 

A.   I  seldom  find  tliein  on  the  same  grounds. 

().  llow  many  will  you  lind  together  as  a  rule? 

A.  Three  or  lour;  two;  very  ol'ten  oiu'. 

(}.  And  tiiis  idea  of  large  Jierds,  witii  watchmen  to  keei) 
the  pelagic  sealer  oil',  is  there  anvthiiig  of  tliat  kind  in 
lieriiig  8ea.' 

A.  Not  in  my  experience. 

Q.  Do  you  tind  them  in  larger  bodies  on  the  southern 
coast : 

A.   Ves.  sir. 

(}.  When  they  are  coming  up  to  the  sea;' 

A.  Oil  the  southern  coast  we  lind  them  in  larger  bodies. 

().  And  the  remark  you  have  made  when  asked  about 
twenty-live  seals  together,  and  that  sort  of  thing,  does  that 
apply  to  liering  Sea? 

A.   N'o,  sir. 

<).  I  )id  you  ever  meet  a  mass  containing  as  many  as  twenty- 
hve  seals  close  together  in  Itering  Sea? 

A.  No,  sir. 

Q.  You  meet  them  in  scattered  numbers? 
A.   Ves,  sir. 

'Pile  position  liere  iissiimeil  l»y  (ireat  Mritaiu  is  dia- 
metrieally  opiHtsed  to  that  taken  wiieii  the  Dotiuljiss 
deposition  was  ur^icd  upon  the  ( 'mmiiissioners.  From 
the  time  of  the  exaiiiination  of  Cox,  tip  to  ami  in- 
(•h;(liiio-  the  last  day  of  tlie  session,  on  February  •_>, 
no  iiion>  evich'iK'e  was  olfered  on  tlie  part  of  (I'reat 
Britain  to  establish  this  "stream  of  seals,"  and  no  otlier 
reforeiiee  is  made  to  it  until  it  appears  ajrain  at  this  time 
H  s 2'.) 


t 


:  '1 


If 

" '  i' 

ji( 

226 


NO   DEFINED    "SKALING   GKOUXDS      IN    UEEING   SEA. 


R.,  310, 

50. 


line 


in  the  Arj;uiiKMit.  IJut  tV-w  rct'ereiici-s  to  the  licconl 
iK'C'd  be  iiiiulc  to  sliow  tliciv  is  no  evidi'iicc  to  sustitin 
the  |)ositioii  iissiiiiR'd  anew  by  Great  Hritain,  as  the 
itr.  A'i..,(i(i.  citations  wliicli  arc  rdicd  on  in  the  Arj^unicnt  in  no 
))i\rticular  sustain  tlic  ojiinion  of  the  witness  Donjilass 
or  licl]'  to  establish  the  contention  that  there  is  any 
wel]-(h'lined  locahty  wliere  seals  are  found  in  such 
al)inidance  as  to  insure  a  ci-rtainty  of  profitable 
huntinji'. 

The  witness,  Alexander  He])|)en,  called  on  behalf 
of  (Jreat  Hritain,  states  that  the  seals  are  no  thicker 
in  one  (|Uarter  than  in  another;  that  it  just  ha]»|)ens 
that  a  schooner  runs  across  a  muuber  «»f  seals  and 
stays  there  for  awhile,  and  that  she  then  ji'oes  GO  or 
To  niiles  in  another  direction,  where,  lyin<:-to,  she 
sends  out  her  canoes  and  stays  there  a  day,  and,  if 
the  seals  are  thick,  two  days,  and  souK'tinies  more; 
and  then,  ])ickin;i' up  the  canoes,  the  vessel  moves  off 
(!(»  or  l(l(t  miles  in  aimther  direction,  (-overinji'  the 
whole  sea  al)out  the  islands. 

The  witness,  Charles  K.  IJaynor,  testified  as  follows: 

(),  In  looking'  for  seals  out  there,  you  Lave  to  take  your 
vessel  around  the  various  parts  of  the  sea  to  nome  across  a 
bunch  of  seals  ? 

A.  Ves. 

Q.  You  do  not  hunt  seals  iu  herds,  do  you — they  are  found 
in  small  bunches,  are  they  not? 

A.  .Mostly,  1  (ind  them  by  two  or  three  at  a  time. 

(.).  There  is  no  such  thing  as  running  across  thousands  of 
seals  and  being  able  to  kill  any  nund)er  of  them  in  a  short 
time? 

A.  No,  sir;  I  never  found  it  S((. 

'I'he  witness  Clarence  N.  Cox,  already  referred  to, 
^iave  the  followinji'  testimony: 

Q.  You  don't  want  to  be  understood  as  testifying  that 
boats  ;;o  out  into  a  large  herd  of  seals  and  catch  them  light 
and  left? 

A.  No,  sir. 

ii.  They  take  them  up  separately  .' 


\i.,  '>'Sii,   line 


14  „  >m, 
4.-.. 


line 


NO    DEKINEI)    "SEALING    GUOUNDs"    IN    HERINO    SEA.  227 

A.  Yes,  one  iuul  two  t<)j;etlier — tliree. 

Q.  The  (;an(>es  or  boats,  whiirhever  you  may  be  using-. 
Which  do  you  use? 

A.  I  have  had  canoes  since  lS!)w*. 

Q-  '"liey  circulate  about  tiie  boat,  and  when  they  find  a 
seal  sleeping,  travciiu';-,  or  breaching,  whatever  he  nniy  lie 
doing,  tliey  kill  him  'I 

A.   Yes,  sir. 

Q.  Then  they  go  searching  for  another? 

A.  Yes,  sir. 

FiiHIkt  reftTC'iicc,  in  view  of  tlic  forej^oiiif''  stjitc- 
iiK'iits  on  tlii^  pjirt  of  till'  witnesses  sworn  hefore  the 
llio-h  CoMiiuission  seems  useless.  1'Iie  United  States 
deny  that  there  exists  in  Hi-riiii;'  Sea,  except  within  the 
territorial  waters  of  the  I'nited  States  sinTonndiii<>' 
the  I'rihilof  Islands,  any  l(»cality,  wiu-re  seals  are  at 
all  times  a]>undant,  of  such  limite(l  extent  as  to  form  a 
basis  for  calcidatinjj;  a  j)rol)ai)l(^  catch.  Thev  admit 
that  within  an  area,  includin<>-  from  14(),()0(l  to  'ir)(»,0(t() 
s([uare  miles  of  open  sea,  seals  are  found  during'  the 
snnnner  months  and  that  they  are  killed  while  .seek- 
ing- their  food  over  this  expan.se  of  waters,  at  the  same 
tinu'  contending-  that  this  large  area  oxer  which  the 
seals  are  scattered,  iinrfli,  nist,  south,  and  wrsi  from  the 
Prihilof  Ishnids,  fcu'ins  no  basis  for  any  formula  which 
may  be  suggested  for  the  computation  of  a  p()ssil)le 
catch. 


:::!■- 


III 


m 


m 


fW. 


DURATION  OF  THE   SEALING  SEASON  IN  BERING  SEA 

"^I'lic  rase  of  the  United  StJiti's  in  answer  to  tlie 
elaini  t'ur  dania^ics,  nieasnre(l  by  the  uncertain  and 
estimated  results  ut'  a  prosjx'ctive  catcli,  is  confidently 
rested  on  tlie  citation  of  authorities  universalh'  liold- 
inji'  that  this  basis  for  detennininj>'  and  a\vardin<i' 
dania^i'es  is  too  uncertain  and  spectdative  to  be- 
accepted;  and  upon  the  testimony  in  the  liecord 
l»earin<>-  uj)nn  the  obstacles  ofi'ered  l)y  nature  and  the 
unsurmountable  dilliculties  encountered  in  the  busi- 
nt'ss  of  seal  hunting,  which  render  the  ascertidnment 
of  a  just  l»asis  for  calculatin*:'  future  earnin<:s  of  seal 
hiuiters  absolutely  impossible. 

The  claim  advanced  as  to  the  duration  of  the  seal- 
in  <>■  season  in  Herinj:'  Sea,  in  the  Ar<i-ument  on  behalf 
of  Great  Uritain,  however,  bears  upon  the  time  thai 
the  owners  (»f  the  vessels,  warned  from  contimunp' 
tlieir  voya<;('s  and  not  seized  and  condeuuied,  were 
deiH-ived  of  the  us(^  of  their  slii()s.  The  extracts  an<l 
citations  of  testimony  from  the  l{e<'ord  and  the  con- 
(dusions  drawn  therefrom  in  the  Hritish  Arpiiment, 
relative  to  the  sealinj>-  season,  are  \i(dently  at  war, 
the  one  with  (he  otliei'.  The  Aoyaj^es  of  many  of 
the  vessels  are  shown  in  the  extracts  from  the  evi- 
dence, carefidly  collected,  to  have  terminated  ])etiveen 
the  20th  and  2r)th  <lay  of  Au<iust,  but  the  conclu- 
sion is  drawn  that  the  season  extended  "well  into 
September." 

Aji'ain,  at  pa^^c  6!)  of  the  Arji'umeiit,  line  20,  a  state- 
ment is  made  of  the  latest  vovaj^cs  that  the  records 
show  ever  were  nuule  in  Herin^-  Sea,  and  made,  it  is 
worthy   of  note,  during   the  year    ISDO,  a  year   not 


DURATION   OF   THE    SEALING    SEASON    IN    BERING    SEA.       •22;» 


(lircclly  iiivulved  in  tliis  ('(tiilrovcrsy.  The  ;ivt'rii<i'(' 
(late  tor  the  Icriniiiatioii  oftlm  voyajics  ot'tlie  vessels 
uiinied  in  this  statement,  wliieh  exclndes  nine  vessels 
ont  <»t'  sixteen  wliicli  were  in  the  sea  tliat  vear,  is 
Sei)tenilK'r  ;">.  'i'lie  days  thai  lnintin<^  ()i»erati()ns 
were  stojiped  is  not  j^-iven,  oidy  the  days  ujion 
wliich  the  varions  vessels  left  the  sea.  The  eoncln- 
sion,  liowever,  is  drawn:  "it  is  therefore  established 
that  the  lial)its  of  the  .seals  and  the  weatlier  ordinarily 
prevailin;^-  wonld  permit  the  vessels  en<>'a<i'ed  in  seaf- 
inji'  to  carry  on  ojx-rations  nntil  well  into  the  month 
of  Septemher,  if  it  was  necessary,  in  order  to  complete 
their  catch." 

Without  citiufi-  from  the  Wecord  the  testimony  of 
any  witness  sho\vin<>'  that  a  lon<>er  vovaii'e  was  ever 
made,  and  in  fact  no  such  testimony  could  l)e  referred 
to,  the  tinal  conclusion  is  drawn  that  it  has  heeu 
"determineil  that  they  would  in  each  case  have  t-on- 
tinued  sealinji'  under  the  favorable  conditions  of  Briti_sh  Aij; , 
weather  proved  to  have  been  existino-  until  as  near  ''''' 
the  end  of  Se[)tend»er  as  would  have  bei'U  necessary 
to  accoin})lish  a  satisfactory  catch." 

The  supposition  mi<ilit  fairly  be  made  that  the 
ternn'nation  of  the  sealinu;'  season,  without  any  foun- 
dation in  evidence  bein^'  fixed  "as  near  the  end  of 
Sei)tend)er,"  W(»uld  not  be  a^^ain  removed  to  a  later 
time.  In  the  statements  ajjpended  to  the  Triiiinjih, 
Ar-i'ument,  US;  Arid,  Arjiument,  1")!;  Kafr,  .\r<>'u- 
meiit,  158,  these  elastic  ])hra.ses,  "until  well  into  the 
month  of  Se])tember"  and  "until  as  near  the  end  of 
Se|)tember  as  would  have  been  necessary,"  are 
expande(l  to  ( )ctober  1. 

The  Tnited  States  contend  that  the  testimony  in 
the  i^ecord  definitely  fixes  Auffust  20  to  Au<iust  2,')  as 
the  latest  time  .seal  huntin^i'  could  be  carried  on  with 
im.fit  in  l-S.Sd,  1S,S7,  ISSS,  and  1<S8!>. 

No  evidence  was  adduceil  cm  behalf  of  tlu'  claim- 
ants bearing  upon  the  <luration  of  the  season,  except 


n 


u 


Pf 

w 

1,: 
i: 
1 

) 

t 

( 
■ 

i! 

h 

i 

•J3()       DURATION   OF   THE    sEAMNG    8KA80N    IN    IIEKINO    SEA. 

ill  the  imlirt'ct  Wiiy  <»t'  ('Xfimiiiiii;^'  witiu'sscs  iis  to  tlic 
time  tor  wliicli  a  vessel  wjis  oiitjitti'd. 

riie  iiiiswer  to  !t  (|iU'stioii  of  that  nature  tiirnislios 
no  tlelinite  in  ton  nation  as  to  the  last  day  that  hnntinji' 
was  carried  on,  and  includes  the  time  reipiireil  to 
make  the  voyaj^ic  out  of  the  sea  and  thence  d(»\vn  the 
coast  to  Victoi-ia. 

All  the  testimony  in  the  Hecord  rehitinj>'  to  the 
duration  of  the  huntinji'  season  in  Herini:'  Sea  ^-iven 
bv  captains,  mates,  or  hunters  on  rrnsfls  irlmsr  rai/df/cs 
iri'fr  nut  iiilirnipffil  or  intrrfcml  iritli,  is  contained  or 
referred  to  in  this  portion  of  the  Ar<iunu'nt. 
i;.,j;iO, lines.  '\'\\(>  hunting'  of  seals  in  Meriuii'  Si-a  l)e<;'an  in  the 
year  iSSi;.  Captain  Warren  testilie(l,  "iSSij  was  the 
tirst  year  then  of  any  note  in  Iierin;^'  Sea."  The  evi- 
deiu't'  does  not  refer  to  more  than  a  half  dozen  vessels 
which  entere(l  Uerinj;'  Sea  jiriortothat  \ear.  an  ' 
of  them  sailed  from  \'ict(»ria. 


nd  none 


Arj;.   oil    lip- 
lialf  of  «. 

li.,  1).  TU,  \n<j: 

liue  IG. 


I'he  Argument  on  hehalf  of  ( Jreat  Britain,  concern- 
Method   for  computin;>'    the    estimated    catch," 
contains  the  statement: 


Exh.    27, 
B.,    t'l. 
Kxhs., 
13. 


K'.,  20(5,   liuo 
23. 


It  is  couteiuled  hy  Groat  i'.ritaiii  that  in  18S6  the  Mari/ 
Ellen  is  the  only  vessel  of  wliicli  it  can  l)e  stated  witli  cer- 
tainty tliat  slie  conipleted  tier  voyage  witliout  interference 
of  any  Iciiid. 

(i.  William  'V.  Hrajiy,  called  on  hehalf  of  Great  Hrit- 
Ji'ain,  was  examined  relative  to  the  voyaji'e  of  the  Marif 
Kllnt  in  1X8(1.  He  ji'ave  a  detailed  statement  of  tlio 
catch.     The  last  huntiuf^'  day  was  Auf)nd  :J4. 

On  cross-examination,  he  said: 

(i.  Tlie  :.>Hli  of  Aut/iixt  was  practically  the  close  of  the 
sealing  that  year  in  lierinH'  ^^ea,  was  itt 

A.  It  was  the  close  of  our  .sealing'. 

(),  Did  you  come  away  earlier  that  year  than  others,  or 
did  you  stay  the  ordiinuy  limit  of  the  sealing  season  if 

A.  That  was  the  ordinary  limit  at  that  time, 

Q.  And  in  1887  it  was  about  the  limit? 

A,  About  the  limit  in  1887. 


UUKATION   OK   THE   SEALING    SEASON    IN    UEKINCi    SEA.        231 


Q.  VVliy  (lid  the  season  close  on  or  about  the  24th  of 
Aufiust,  1.S.SG  and  lasT-} 

A.  Well,  coming  on  the  1st  of  September  the  weather 
commences  to  {jet  bad.  The  northwesters  set  in  about  the 
latter  part  of  Aufjust,  and,  as  a  rule,  they  take  the  lust  north- 
wester about  the  last  of  Aujiust  and  steer  for  home. 

i}.  And  when  they  talk  about  the  season  extendinfj  into 
Sei»tembcr  they  do  not  speak  of  tiie  years  lSiS(J  and  1887  .' 

A.  I  never  remained  in  there  that  late. 

().  And  you  never  knew  anyone  else  to  remain  in  there 
that  late  in  those  years? 

A.  No,  1  (lid  not. 

(i>.  I  believe  you  said  that  yon  stayed  in  Bering-  Sea  asK.,  267,  line 
long  as  you  desired,  and  that  you  did  not  come  out  because    ^'• 
of  any  seizures  in  188(i; 

A.  Not  that  1  was  aware  of. 

Aiidrow  I).    I.iiiii;;',  cxiiiiiiiu'd  on    Ijclialt'  (if  ( Jreat  !{•.  270. 
Hritain  and  liiinsi'lf  m  ('huiiiiint  ht'toro  tliis  lli<ili  ( "om- 
luissidii,  testified  relative  to  the  vovau'e  ••!'  the    IT.  I'. 
Soi/ininl,  ISSd,  and  siiid  that  Aiifiiisf  :>4  was  the  hist  i?-27i,iiuc3. 
day  that  the  hoals  were  h»wered  tor  the  purpose  ot" 
lunitiii";'  seals. 

Eiuile  Uaiulase,  called  on  l)ehalf  of  (xreat  Britain, 
relative  to  the  catch  of  the  Tliocsd  in  Berino-  Sc-a  in 
188(1,  said:  '  «-^'^299,  line 

Q.  And  how  long  did  you  remain  in  the  sea  sealing? 
A.  If  1  remember  right,  we  left  on  the  I'Sih  of  Avijust. 
Q.  Why  did  you  leave  on  the  2r>th  of  August? 
A.  I  don't  know.    1  suppose  that  was  the  end  of  the  trip. 

On  cross-oxjunination,  witness  said: 

Q.  When  did  you  stop  se.aling  in  August? 

A.  What  year? 

Q.  In  1886! 

A.  Well,  as  near  as  I  can  remember,  a  few  days  before  that, 
probably  a  couple  of  days. 

Q.  Then  you  left  on  account  of  what? 

A.  The  vessel  wasn't  fitted  out  for  a  long  cruise;  she 
wasn't  very  well  i)rovisioned  going  home? 

Alexan<h'r    Ke])|)en,    called    on    behalf    of    (JreatR.,  306,  line 
Ikitain,  testified  that  he  was  on  the  Graie  in  188(1:        ^"" 

Q.  Did  your  sealing  end  about  the  I'lth  of  An  {instil 
A.  About  that  I  think. 


K.,  300,  line 
47. 


ili 


f-"- 


•S6: 


DURATIi)N    OK    TlIK    SKAIJNO    SKASON    IN    liKKINd    SKA. 


1.'.,  :)11,  line 
5'.'. 


Q.  You  wi'iit  (tut  <tl'  tlio  sen  on  the  l'>th  of  AuqiiHt .' 

A.  Yi's. 

i).  You  stated  that  yoii  were  there  si^veral  days  wiiitiiif; 
for  jidod  weather,  did  vou  uotf 

A.  Yes. 

<i>.  And  tlu*  flood  weiither  did  not  «!()ine? 

A.  No. 

(i».  So  vou  went  out  of  tlie  sea  J 

A.   Yes. 

(J.  Was  tlie  bud  weather  that  season  the  reason  wliy  you 
left  I  lie  sea? 

A.   Yes. 

i{('|(|K'ii  WHS  lilt'  Diily  wiliKfss  ciillcd  wlin  was 
alxmrd  liu'  (irmc  in  ISSlI,  and  his  cviilciict^  (»i)l- 
wt'ifi'lis  llio  ^i'l'iicral  .slatcnii'iil  of  (Japlaiii  Warren 
lliat  iiis  vessels  wci't'  (tiillittcd  tor  a  V(»ya<>v  until  llie 
end  ol'  .St'|)tciiiltcr. 
i;..^;!77,  lim.  ,i,,||„  c.tsford,  called  on  l.clialf  of  tlie  Unilcd 
States,  relative  to  the  voyaj^*'  of  t  he  <  Vovj/r;/r/  in  IHSd, 
said: 

(i).  Do  yon  know  aiiytliiii};'  about  what  the  time  t!a|ttaiii 
Oslevie,  or  did  you  liear  anytliini;  about  the  time  he  was 
l)re|>ariiif;  to  h'uve  tlie  sea.' 

A.  Somewhere  alxait  the  3()th  <>»•  S'Iril  of  Aiinimf,  1  believe. 
(Cajitain  ()f;levie  had  t«dd  him.) 

liritish  Agr.,      .laiiu's  .Mniiyer,  called  on  behalf  of  (ircat  liritain, 
40.  relative   to   the  voyji<iO  ot   the  (  iirolriKt   \\\    IHSd,  is 

cited  in  the  Hritish  ar;.;iinient  as  sayino': 

In  the  sea  the  captain  talked  of  going  borne  about  the  end 
of  the  month  (of  August). 

R.,  030,  linu      ('ross-exainiiic'd,  this  witness  said: 

So- 

(}.  Will  you  swear  whether  they  said  "about  the  end  of 
the  month"  or  "the  -'0th  ol'  August f 
A.  Xo. 

Q.  You  could  not  say  which  J 
A.  Xo;  not  as  to  date. 

R.,  1728,  line      IV-ter  ('.   Mever,   called   on   hehalf  of  the   I'nitcd 
ifi  •' 

States,  testifvin<>'  rehttive  to  the  vova<i'i'  of  the  ]'<(ii- 

iln-hilt  in  tlie  years  18S(i,  1.SS7,  and"lS88,  said: 

Q.  How  did  you  tind  the  sealing  between  August  20th  and 
the  end  of  August  ? 


1 1 

IP 


DURATION   OF    THK    SEALING   SEASON    IN    HERINCJ    SEA.        233 

A.  From  tlu«  I'Otli  <if  Aujjiust  to  the  end  of  the  inontli  I 

Q.  Yes. 

A.  Well,  1  didn't  (ind  much  in  it.  There  was  not  much 
pay  in  stayinjj  tiiat  time. 

(}.  Wiiat  did  you  stay  for? 

A.  I  was  there  to  u;ive  it  a  trial,  and  I  stayed  tlrere  and 
gave  it  a  trial,  but  I  found  it  didn't  pay  me. 

(^  In  your  experienee  in  188fJ  and  i.S87,  y(m  did  not  find 
good  sealing  between  tiie  :>(ilh  and  .lint  of  AiujitHt .' 

A,  No,  sir;  it  was  not  good  sealing  weather. 

'I'lu'  witness  Imd  Itccii  in  IVriiij-'  Sea  lii'twct'ii  the  i'':  1727,  line 
2()tli  niul  31st  uf  Auoiist  ill  1SS6;  tlicn-t'oir  wiis  in  ii    ^*" 
pnsition  to  testify  CDiifi'rnino'  the  iu-tiiiil  ('(inditions. 

Ciipt.  Wni.O'l.eiirv.  inaster  of  the  I'uthjiudrr  in  ISHC,  «••  292,  line 
!i  witness  oinedon  behalf  of  the  elaiiiiants,  testiiied:         ^^' 

Q.  Mow  long  were  you  jnovisioned  to  stay  and  how  long 
did  y<m  expect  to  stay  in  the  sea  when  you  went  there? 
A.  1  intended  to  stay  until  about  the  tirst  of  September. 

'I'lie  witness  then  testiiied  tliat  he  did  leave  Au<-iist 
(i;  e(»nse(|iiently  he  had  no  actual  expeneiiee  that 
year  in  thi-  sea  after  the  6th  of  Aii<>iist. 

Captain    O'Leary   was    examined    rehitive    ii    the*'';  293,  line 
voya^re  of  the  l'<il'hliii<lcy  in  1SS7: 

(i.  Vov  how  long  were  you  provisioned  and  what  time  did 
you  expert  to  stay  there  ? 

A.  I  expected  to  stay  until  September— about  the  Ist  of 
September. 

ii.  As  a  matter  of  tact,  how  long  did  you  stay  in  the  sea? 

A.  1  left  on  the  17th  i>f  Augmt. 

'I'lie  witness,  tlievef(n-e,  was  aj>aiii  not  in  a  jxisition 
to  testify  as  to  the  actual  conditions  existiiiji'  in  the 
latter  part  of  Au^'iist. 

Exhibit  27,  (i.  H.  Claim  X(..  1,  Kxhibits,  paye  43, 
discloses  that,  although  thd/^rn//  Ellcti  cease<l  huiitino- 
the  24111  (»f  Aujiust,  she  did  not  leave  the  sea  until 
the  29th,  the  interveiiinji'  time  beinj^'  eiiii)lo}e(l  in 
makiii<i'  ready  for  her  return  voyage  and  in  the  pas- 
sage   of   the  Pass,  throu"h  which    she    left    Beriiio- 


Sea.     Deduftinj''  five  davs   f 


iom  September  1,  and 


even   the   testimony  (d'   Captain  O'Leary   regard 


ffti 

p'i- 


inii' 


n  s- 


-30 


234        DUIIATION    OK   THK    MKALIXO    SK.VHON    IN    HEKINO    SKA. 

what  lu'  itifrndiil  fixes  tlic  close  ot"  tlie  limiting'  seiisdn 

R.,  770,  lint!       ,.,,  .'       .  •        I        I    ,■        » 

43,  I  Ins  Witness  \V!is  exiunnieil  rela.ive  ti»  ii  vo\  iiyc  in 

U'lilfrr  L.  null  in  1S!I(): 

ii.  How  late  ill  Aii^iiHt  did  you  leave? 
A.  About  tilt'  L'otli  of  AiiKiist,  as  liir  as  I  reineiiibcr. 
<i>.  Vou  lu'ver  were  in  tlieie  later  than  tlie  .''//( itj' Aiitiiixt .' 
A.  1  do  not  tliiiik  so:  that  was  tin-  last  year  I  was  in  tin- 
lieriiiK  Sea. 

This  witness,  wlm  was  one  ot'  the  eaptains  emphived 
liy  the  chiiniaMt.  William  .Mniisie.  hetween  the  years 
18S(i  and  ls;i(l,  was  iiexcr  in  IJerinj:'  Sea  later  tliaii  tlu' 
L'.'tth  of  An;.;iist.  ■  ediietiiij:'  the  usual  time  re(|nirei| 
to  make  the  voya^i'e  tVom  the  |ilace  wliere  the  vessel 
ehaneeil  to  he  sealiii;^'  to  the  Pass  through  which  she 
would  leave  the  sea  and  hiintiiij;'  o|>eratioiis  would 
cease,  according;'  to  his  testimony,  alioiit  the  :*(llli  nj 
A  Uf/Kst. 

('aptain  .lames  1).  Warren,  who  nuinajied  the 
lai'ji'est  lleet  of  vessels  in  IJeriiif;'  Sea  in  lSS(i,  cx- 
amineil  on  liehalC  of  the  clainiiint,  is  cited  in  the 
liritisli  ArLinment.  )iai;'e  7<>.  in  sii|t]iort  ot' the  conten- 
tion that  the  sealinji' season  in  the  \  ear  1  SSG  extended 
to  the  end  ot'  SejitemlxT : 

K.,  !M'«,  liii''      (),  III  l,SS(i.  taking  till' siipitlies  you  liail  on  the  vessels  yoii 
"^*  lia\i'  iiieiitioiied.  liow  ionji  did  you  iiriaii};'''  tor  tlic  cruise,  a 

cruise  of  tlic  \arinus  \esscls  in  your  licet.' 

A.  My  intention  was  to  have  staycil  in  the  sea  until  ahuui 
the  end  of  Seiitcinber. 

This  witness  minht  reasmialtly  he  expected,  when 
the  "general  (diaracter  of  these  claims  is  considered,  to 
testifx'  to  a  ))ridoii^'ed  hnntiiiL!' season,  hut  irrespectix c 
of  his  prejudices,  the  fact  is  disclose(|  liy  the  record 
that  he  was  never  in  IJerinj;'  Sea  after  the  'Jtttli  of 
.\iiiiust.  and  that  the  captains  sailinu'  the  schooners 
of  the  lleet  in  the  Near  ISSd  all  stopped  liiintiii;:' 
liefore  the  iTith  of  Aii;^ilst. 

i.,aiiiji',  mate  of  the  .SV////f70v/,  managed  hy  Warren, 
.states  the  last  .sealiim'  dav  was  AiijiKst  :Jt. 


Dt'BATlUN   OK   THK   SKAMNO    SEAbON    IN    HEUING    SEA.        285 


AlfXiiiiilcr   lit'|t|tcii  tcstilicd  tliaf  tlin  di'iiri'  cciiscU  K.  an,  line 
licr  sciiliiiji'  vt(\  ji;i('  <iii  the   i'>tli  of  Aiif/iist,  niid  tlint 
slic    WHS    not    Wiinicd    Itiit    sttippcd   hcciiiisc  ut'    Itiid 
Wfiitlicr. 

("iilttiuii   nlscii,  sailiiifi'  tlu'   Aiiiki  ItccI;,  hclonoiuM' ■{•gWM,  line 
to  the  ricct  miiiiii^icd  hy  Wiirrcii  in  ISSG,  tcstilicd: 

(}.  Ho  tliat  you  would  not  bt'  positive  that  you  were  out- 
fltti'd  iiutil  tilt'  l8t  SepteiiilK'iJ 

A.  I  am  positive  tliat  1  was  outlltted  until  1st  September 
wlu'ii  1  It'll  tlip  wt'st  foast, 

(k>.  And  yon  made  arranfti'iat'uts  to  hunt  until  what  timt> .' '*''*""'  ^''"' 

A.  Wt'll,  as  Ion;:  as  I  thoujjht  lit  tti  stay  in  tin-  Iteriiig 
Si'a.  Tlifst'  wi'it'  my  orders.  1  had  om)ujili  sup|>lies  on 
board  to  kt't'])  lue  tht'it-  until  the  bejt'innin^  of  Heptember. 

().   How  Ion},'  were  you  instruetetl  to  stay  there? 

A.  As  Ion;;'  as  I  thou;;ht  reasoiuible  to  j;t't  skins, 

(^.  hid  vou  lit  out  this  same  vessel  the  vear  belbre,  viz, 
|SS(;? 

A.  I  did. 

(I.  And  you  tittetl  her  out  in  the  same  way  ? 

A.  Yes,  sir. 

(i.  How  Ion;;  did  yt)u  remain  in  the  sea  in  l.SSii? 

A.  Until  the  //'//(  Aiifiiist.  and  then  1  started  tor  the  pass 
antl  eame  through  on  the  Jlst. 

'V\h'  fuptiiiiis  1)11  tlii'cc  (d'  the  vessels  of  this  Heet 
positively  ('(iiitradict  ("ji|itain  Warreii.  and  iiiasmueh 
as  his  testiiiiiiiiy  was  iiased  ii|Min  a  sii|»|M)siti()ii  ami 
theirs  u|Min  aetiial  experieiiee,  hut  little  weitiht  is  to 
he  {i'iveii  tf>  his  statement. 

The  witness  hiniselt,  however,  onfross-exaniination,  ^•'  '*^'  ^°^ 
testilied: 

(}.  Now,  you  sny  your  sehooners  were  all  litted  out  to  leave 
the  sea  at  the  end  of  Septend)er? 

A.  In  that  ueighborhot)d. 

Q.  Did  ytai  ever  know  a  sealing  vessel  that  stayetl  iu  Ber- 
ing Sea  to  the  eiul  of  Spptend)er  in  those  years? 

A.  Iu  them  years  I  don't  think  I  do,  and  I  thiwk  likely 
there  was  vessels  in  before 

(},  Vou  tlitl  not  begin  tt)  enter  Bering  Sea  until  18S<» ' 

A.  The  Victorians  did  not,  as  a  rule. 

Q.  (Jan  you  tell  me  of  a  single  vessel  that  remained  in 
Bering  Sea  in  ISSli  or  1887  as  late  as  September? 

A.  I  don't  know  as  1  know  of  one. 


23fi        rUKATION   OK    THK    SEALING    8KASON   IN    HEKING    SEA. 


1?.,  408,    line 


(i>.  You  were  first  in  Bering  Sea  in  188(>f 

A.  Ill  1S8(!. 

().  Wliat  was  tlie  usual  time  for  leaving  Heriiig  Sea  of  the 
vhole  of  the  sealing  lleetif 

A.  We  were  coiiiniencing  at  that  time;  1  inteiuleil  to  have 
sto]>))e(l  in  until  the  end  of  September. 

«i».  Have  you  learned  sinee  by  experience  that  tiiere  is  no 
sealing  to  be  had  after  tiu'  L'-'ilh  of  Aii</iigt.' 

A,   Ves,  sir. 

('iiptiiin  AIcxmikUt  McliCUii.  sailiii;;'  tlic  Fdroiiiifi, 
(■lost'd   liis   luiiitiiij;-  season   in    1<SS.'{   on   tlic    lOth   of 
Aiiifiist;  in   ISS.')  on  \\\{'  .'J.'lil  of  Ai«)iisf,  nnd  in  iSSd 


on  the  l!ffli  (>>' 


•Ills 


I       II. 


f  itrodnct'd 


tl 


U'  oriiiinal  lo 


I  1. 


hooks  of  liis  Noxaiif  for  tlmsc  xcars,  and  tlic  t'ntr 


ics 


'niirnicd    liis   ti'stinionx'.      Tlic   ioo's  are   on    iile    a> 


exlnhits  aiid  can  he  nis|)ccte(l. 

This  Icstinionv  is  all  tlie  testimony  in  tlic  record 
liearin;^'  niioii  tlie  duration  ot'  the  scaling'  season  in 
HeriiiL:'  Sea  in  the  \ car  ISSli,  which  was  i;i\'cii  1)\ 
ca|)ta!ns  who  were  actually  there  and  whose  voyaiics 
were  not  interrii|ited.  (Mily  one  of  these  vessels  was 
warned,  and  ('aptain  McLean,  coininandiii;^'  that  xcs 


'1,  the    l'(iniiir'ili\  testilied   that   he  di 


KJ   not  lea\-e  tlie 


sea   liecause  o 
the   l!ltll 


t'  the  wariiiiiL;',  hut   stopped   hunt 


niii'  on 


An-i 


liecause  the  sciisoii  was  closei 


rKsriMoNv   i;i:i..\TiN(i    ro  hi'Ka'I'ion  ok  s|':as()\  ok  isst 


lO;!,    line 


H.,  ii;i7,  III) 

61. 


('aptain     Alexander     .Mid, can.    sailiiiL;'    the     .1/. 
i'.lhii  stopped  hiintiiii;'  on  the   UHli  ilin/  nj  Aiii/iisl. 


till 


( 'aptain  ( 'h: 


iries    K.   K'axnor   states   that    he    ui 
111  the  :'////  !>/  A 


mill. 


<t.  1SS7.  on 


66. 


!:iO,    line 


readx  to  leave  the  sea  i 
the  A/n,    /.  Aliin: 

('aptain  I.auLihlin   McLean,  a  witness  on  ladiall'  ot' 
(ireat  liritaiii,  testilied: 

I}.  When  did  you  leave  ISering  Sea  ? 

A.   1  will   have  to  refer  to  my  books  |(>xamiiiing  memo 
randum!.      In    l.sST    my   last    sealing;  day   was   the    JHh  ni' 
A  luiiisl.  AUi]    1   came   out   tlirouj;li   the    pass  on   the  .")tli  of 
September. 


-^»"T^il^>^^l 


DURATION    OK    TIIK    SKALINC    SEASON    IN    IlKRING    SEA.        237 

Tlicdotiiilcd  sliitciiu'iit  of  till' ciitcli  (if  tilt'  Favuuiitc^^\',  "'*-.  ''"e 
ill  If^ST  shows  tliiit   the  2<;tli  of  Aii<>iist  was  the  last    '' 
si-aliiio-  (liiy,  the  widicss  statiiii--,  "and  the  -Jtitli  is  the 
last  day  of  scaliiiji'."' 

Captain  AIIktI    Folncr,  ii  witness  calUMJ  mi  behalf '''j  l"^-- ''"« 
of  the  Tnited  Stiites.  examined   rehitive  to  his  voy- 
ages in    Heriiio-  Sea.  testified    diiif   he   was  n  sealing- 
eiiptain  and  that  he  resided  iii  \  ietoria,  and  that  the 
last  day  he  senled  in  1SS7  wiis  the  •'  I'JtIi  i,f  AiiiiHst." 

('jiptiiin  Peter  ('.  Meyer,  a  witness  cjilled  on  hehalf '''v„/'-"' ''"« 
of  the  I'liited  Stiites.  testified  that  his  hist   lowering- 
day    in    1S,S7    was   on    the    ■J'.Hii    <,f  AikiusI:  that    he 
rniifdiiril  ill  tlir  .-^fii  until  t/ir  1  nil  of  Sriilcnihrr,  diid  mis 
llllillilc  III  liiinr/iis  IkkiIs  ill  llif  iiiriliifiiiir. 

Alex.'inder  i;ci»|ieii  testilied  tlint  he  Wiis  on  the  Jlhicl,-  "  j  i'"^''  •'"« 
hidiiiniiil   in    ixm,  jiiid    that   she    left   the   sen    on    the 
l-'illi  III'  Aiif/iisl. 

Ciiptiiin  .MoN.-,  testified  tli;it  the  h'nlr  left  the  sen  in  ^'■-  :«».  I'ne 
ISS7.  "the  hitter  pnrt  of  .Viiniist."  nndliiter  lixfd  the  K.,;ui, lino  i. 
diite  "somewhere  aliont  the  -.'Olli  nr  :Jilli  m    J-'ilh." 

I'lxamillrd  ;iL;!lin  ;is  lo  the  dilte,  he  testified  •\-J(ll!l  iiH^-;  •■*"'■'■  '"'i' 
.l/ii/iisl  ,))•  ii  little  hiter.      1  do  not  i-emember  as  to  a 
d;i\    or  so." 


rnr.    tkstimonv     i;i:i.a  iivk     id    ■riii;    ci.osk    oi-     rm.: 

SKALINO   SKASON    IN    isss. 

I''mi'e  Hiii.iliise.  exmniiicd  on  iicliidl' ol' ( ircat  iirit- "■•  "-•'.  '"'i'" 
ilill    i-cl;lli\    ■    to   the    \iiy;l;ii'   of   ihc    Ai/liir    ('.   Mimn    iu 
Hernii:'  ;'-e;i   ill    I  SSS,   s;iid: 

').  What  time  diit  ymi  feave  / 

\.  Almut  tli(>  L'mii  of  Aiijiiisl,  I  bclicvi'.     I  ani  not  certain  ij.,  ^\^l■^   u,,,. 
of  tfiv'datt'.  tfioii-ili.  Vid. "  ' 

(■.  N'cr.v  iH'ar  tfie  L'Oili? 

A.   It   iiiii.sl  liiiri'  hirii    nri/  iiiiir  tlir  :jiilli,  liicnu.si    ii-f  hail 
/iiiisliril  iHir  Kiiiliiiii  Ki'iimiii. 

i).  NNCre  \(ni  warned  out  in  l.sss,' 

A.  No,  sir. 

]•].  ("row  Bilker,  the  owner  of  the  Trimniili  in  1SSS, 
iiiid  ii  witness  sworn  on  his  own  liehiilf,  testified  rela- 


rwT'ww^ 


U  i' 


238        DURATION-    OF   THK    SKALING    SKASON    IN    BERING    SEA. 

rivo  t<t  the  V()yiii;-t'  of  rlii'  'rriidiipli  in  ISSS,  iiiid  jiiixc 

i;..  701.',  lino.,  (Ictjiilcd  st.itCiiiciit  of  tlu'  ciitcli  in  IJerinu'  Sen.     Tiic 

hist   lowering' iliiy  Wiis  the  /JOfli  (iJ'Ait/ii.sf.     Tiic   Jnst 

lowering:-  (liiv  iK'forc  tlint  dntc  wiis  tlic  I  III/  <it'  Aid/iisl. 

('jiptiiiii    Liin^hlin    .McLcfin,   tcstifx  in;.''  rcliitixc   to 

the  voxMuc  of  the  l-'araiirUi'  in  lSS8  on  hclialf  of  the 

^6»'"'""  '""'<'l't''"i"i'^'  '^■''"1  "(rcfcrrinL;'  to  nicinonnulnni)  :   Svli  of 

.lul\-  1  cntcici!    I'x'i'ini;'   Sen;    .'M  of  ScjitcnilxT   I   left 

the  sen.      .M  \-  last  sciilint:'  day  was  tlic  :J/tli  aj'  Aiifinst." 

The  reason  iir  left:      "'I'lu'  wcatlicr  was  had." 

( "aptain  .\ll)crt  Koljii'i-,  of  tlic  Miii/i/i(  Mar,  tcstiiicd 
itiiat  liis  last  scaling-  day  in   iSSS   in   IJci-inu'  Sea  was 
the  ■/////  oj.  I  III/ list. 

'      ("a|itaiii  .loini   Steele  was  sealing;'  in  ISSS.      "The 
'first  stron;^'  j^ales  that  set  in  from  the  northwest  after 
the  JOfli  Aiii/iisl  we  yenei'alK'  iett  for  home," 

Captain  !'eter(".  .Me\'er  testilieil  that  he  was  masi;'r 
•of  the   schooner   Viiiii/iilii/t  in    IHSS,  and  that  sealii'u' 
iliil  not  pa\-  after  the  JOtli  nt'  Am/iisf. 

( 'a  pi  a  in  .\le\ander  .McLean,  saihiii:'  the  Mmii  F.llni, 
R.,   fill,  line  ill    1  SSS  stoppeil  himtillli'  oil  the   IDtli  i/iii/  uf  Ailji.lst. 

William    .1.    (Joiidie,    called    on    I'chalf   of   (Ireat 

liritain,  testilied  that  the  .-.'■■^tli  <il' Aiiiiiisl  was  the  la-t 

'ij'"'       '  huntinji    da\    of   the    i'.ihnnil    Wihli.      .Vlthoiiiih    the 

K.,  (i"7.  liiK' vessel  did  Hot  i;o  oiil  until  the  Tth  of  Septemher,  the 

hoats  were  not  lowered  in  the  meantime. 

Captain  ( 'liarles  Ilacki'tt.  called  on  hehalf  (»f  ( iieat 

i;.,(mH,  I'lir  |{|.jf.,j,,_  (.xamined  relati\e  to  the  voxaii'e  of  the  Ainiir 

('.  Muniv  in    ISSS.   testilied    that    he    left   the  sea   the 

:^:Jiiil  lit  Aiii/iisl.  and  that  he  was  not  afraid  of  seizure. 

Captain   N'ictor   dacohseii.  a    claimant    liefore    the 

iliuli  ( 'ommissioii,  is  citeil  in  the  .\riiumeiit  on  Ixdialt 

of  (ireat  JJritain  on  the  duration  of  the  season,  and 

the  statement  is  maile  that  he    "also  remained  in  the 

sea    ill     jKss    until    the    Tth    of   Septeiidier    without 

ilitliciilty."" 

R.^jiii,  lino      11^.  ^^.,|^  cross-exaiiiine(l  relative  to  the  voyaji-c: 


K..  1082,  liii 
57. 

R.,  1078.  liii 

JO. 
R.,  107S,  liii 

oS. 

II.,  1727,  tin 

i;;. 

R.,  1728,  lin 
2(1. 

R.,  40:;,    tin 
."i!l. 


UlTKATION    OK    THE    SKALING    SEASON    IN    IIKRING    SEA.       239 


Q.  1  iim  talkiuff  about  wlii-tUer  you  are  certain  you  luiiited 
after  tlie  ;'>rd  of  Se|)tenilier. 

A.  We  went  out  throus'li  tlie  pass,  but  we  hunted  to  the 
last.  \N'e  left  tlie  sealing  jironnd  on  the  .Iril  ot'  i-'cittcmlx)  in 
the  sea.  and  went  aiul  tilled  water,  and  we  h. wei'^d  and 
sealed  auer  we  fdled  water  and  come  out,  the  same  day  we 
come  out  or  the  day  before. 

(},  You  practii-aliy  al)andoned  your  hunting  then  on  the 
3rd  of  September? 

A.  Out  in  the  sea,  I  snpi)ose.  We  eonu'  and  tilled  water 
and  then  we  hunted  after  tliat. 

i).  You  lowered  in  the  i)ass;' 

A.   Yes;  lowered  inside  tlie  I'ass. 

This  witness  said  tliat  lie  ciiiuc  out  in  tin-  vl'-av  l.S'.K) 
on  the  'Jl-<l  of  Aiifiiisl :   that  lu'  was  not  atraiil  of  seiz- 
ure, and   that   lie  canii'  out    liecanse   he   liad   enoiiii'h '''y/'^'*' ''"" 
soals. 

Caiitain   IJahci'  is  cited  in  the  .\riiinncnt  on  liehalf'^^M'^;.- '^•; ''• 
or  (ireat   i»nrani.       I  lie  statement  is  made  that  he  re- 
miiined  in  the  sea  until  the  2iid  of  Se|iteiiil)er. 

Tile  witness  lieiiiu'  asivcd  to  ^ixc  a  ih'taiied  state- 
ment of  the  eatfh  of  his  vess(d  in  the  month  of  Auiiiist, 
ISSS,  Ma\('  tile  statement  whieli  sliows  that  after  the  i'"-.  T-'i'.»,liiie 
■JTth  of  Aiiiiust  he  did  imt  lower  the  lioat>.  and  tooh 
l)iit  two  seals  after  that  d;ile.  mie  of  them  on  the  .'ititli 
of    Viiu'nst  and  the  other  on    the  2iid  of  Sf|)temi)er. 

(>>.   And,  for  instance.  I  tliiiik  you  stated  that  on   Aiiui  >l  I'-  T'.'73,  lliu' 
S.  Hi.  '_'."),  and  "lOiii  ami  September '_'iid  \  on  only  took  one  se   1 
on  those  (lavs.     Would  I  hose  be  lowering;  <la\>  f 

A.  No.  si'r. 

.\(  TordiiiLily.  the  (dose  id'  the  hiiiitinL;'  season  for 
that   \(i\aL;'e  was  Aniinsl  .'/Hi. 

<'a|itain    Clark,  td'    tlie    .//(/n^^/^/.  testilied    that    h,.  i-'..  nm.  line 
left    the  sea    Aiifiiist    •>().    Isss.      K'ccnllcd    tor  further 
examination,  he  stated    that    the   reason    he    Icif    was 
iK'caiisr  he  did  not  know   Init  there  inii^ht  lie  seiyjircs 
after  the  L'titli  ot'  .\iiLinst. 

Herman  Smith,  totifyiiii;- on  hehalf  id'  (ireat  |lrit- "■•,.(' ""■"'• ''"'' 
aiii,  said  the   llldil;   hiiniKmil  hit  the  >ea   in   1SS,S  on 
the  I'.'plh  of  .\*iii;nst. 


PHiiqp 


m 


!;i 


240         DURATION    OF    THE    SEALING    SEASON    IN    ItEKING    SEA. 

The  tcstiiiiony  (»f"  iill  tin-  witiu'sscs  clciirly  csial)- 
lislu's  that  l)iit  one  vessel  had  ever  reiiiaiiieil  in  lierin;^' 
Sea,  prior  to  the  year  ISHlt,  into  the  niontli  of  Se]i- 
tenilter. 

In  the  chiinis  as  presented  in  the  Arunnieiit  <hnna<;es 
for  inti'rrnpted  voyajzes  wiiicli  wouhl  have  lieen 
exteiiih-d  nntil  tlie  ir>tii  of  Sejiteinlx-r  are  aske(L 

'Ihe  Moiiiifdiii  Cliii'.f,  saih'il  li\  ("aptain  .laeultsen. 
was  the  vessel  that  alone  of  all  the  sealin;^-  fleet  in 
Herinu' Sea  in  the  yeai-s  ls8(i,  ISST.  and  ISSS  took 
a  seal  in  Septend)er.  The  testiinom  of  ( 'aptain 
.lacohsen  has  been  cited  where  he  stated  that  "We 
left  the  >ealinfi'  ji'round  on  the  ■'ird  oj  Sr/ifciiihcr  in  the 
sea."  lie  does  not  state  what  day  he  lowered  last 
in  the  .scii.  leaxint;'  this  to  conjeetnre. 

Inasmneh  as  the  ti'stimony  of  the  other  witnessi-s 
abundantly  estahlishes  the  fact  that  no  other  vessel 
lowered  its  hoats  in  the  month  of  Septendter.  the  pre- 
snnqition,  anioinitinu'  almost  to  a  jiositive  conclusion, 
is  that  ( 'aptain  dacolisen  did  not  lower  his  boats  from 
the  Mi)iiiit(iiii  Clilrf  'u\  September  in  the  .sy7^  A<;ainst 
the  positiv<'  statement  ef  the  other  witnesses  as  to  the 
close  of'  the  hunting'  season,  and  apiinst  the  experi- 
ence of  so  many  other  sealing:'  captains,  this  one  case 
of  the  continuation  of  hnntin;^-  to  the  ih'd  ot  Septem- 
ber surely  does  not  warrant  the  conclusion  that  the 
loth  of  Seiitendjcr  was  the  limit  of  the  season. 


TESTIMONY    I<KLATIN(i    TO    DrUATloN   OF    SKASON   OK    l>8!t. 

('aptain   Charles    llackett,  a  witness  on   behali    of 
K.^^ess,  line  (;,,^.,|^  Britain,  testified  that  he  left  the  sea  in  the  J;///;r 
('.  Miiarc  in  1S8!I  on  the  L'l'nd  of  Au^iust:   thai  it  was 
not  i'avoralile  weather  for  sealing:-  lietween  the  Kith 
and   'J2nd,  and   tliiit   he  stopped   huntin;^'  the   Id'tli  of 


46 


I  llflllst. 


K.,  651,  lino 


nomas 


II. 


Iii'own,  witness  c 


■d  on  belialf  of  (ireat 


% 


Ih'itain,  teslilicd  that  the  hist  lowerin;^' da\(if  the  ves- 
sel that  he  was  on  in  1.S81I  was  tiu'  :.'')th  of  Aiijinst. 


UUI.ATIOX    OK    TilH    SKALING    SKASON    IN    HERING    SKA.        241 

CiiptiMi  Uakcr,  cited  jis  mitli((rir\  mi  diirjitimi  of  tlic 
seiiliii^  sciison.  in  the  Arfi'Uinciit  oi'  (Jrc;  t  liritfiiii,  iuid  lv'..Ti!Mi,if5. 
ii  wiliicss  cnllt'd  oil  hcliidt'  of  (ivciit   livitaiii,  tcstiiicd 
tliiit  flic  last  limiting- day  in  iicriiii:- Sea  in  ISSii  was 
the  -Jlsl  (,f  Aiiiiitst.      He  sailed  tiic  I'ira. 

Cajitaiii    l,au<ililiii   McLean    testiiied   that    lie   was ''-j.,''^'''  '''"^ 
sailin;^-  the   Fdrcirilc   in   the  year  lSS',1  and  thai    the 
last  day  he  sealed  was  I  he  l-'-v/A  of  J  ,i(/i,s/       He  l,.fta 
few  days  later,      lie  did  not  leaxc  liecaiise  of  t'ear  of 
seizure,  hut  because  he  "\\aiited  to  n(,  home." 

Alliert  Hissett,  calleil   on    lielialf  of  (ireat  IJritaiii, 
testiiied  that  he  was  (Mi  the  'I'litiisu  in  Issil  and   that"'  '"''•  ''"" 
she  did  waxhtirc  until  thcV/v/  o/' Sfp/ruilHi:     The  wit- 
ness did  not  know  the  last  loweriiiLi'  <la\ . 

Cajitain   Alliert   Folocr,  of  /V//rA,/y^'  testified  that '''V;,)"*"' ' 
the   last  day  he  seale(l  in  18S!)  was  the   l.'/fli  »/   An-li..  m-2,Un 
liusl.  '  '  "■"'• 

C'aiitain  John  Steele  teslilied  that  he  was  in  the  sea  ''J  '"'**• '""' 
in  188:i.  and  stat.Ml: 

The  lirsl  strong  ;rales  tliiit  sot  in  fioiii  the  iiortliwest  after 
tlic  ^'nth  of  AiKjit-st  wo  geiiorally  left  ('(ir  lioiiio. 

'I'lie  latest  he  was  ever  in  Herin-i'  Sea  was  \\ir  -J.'/fli 
(if  A  till  list  in  ISIKI. 

( 'aptain  Alexander  McLean,  sailiiij:'  the  Miiiii  Kllni,  I'-j^H".  ii"« 
stoitjied  huiitinii-  the  :>'itl,  nj  Aiiniisl  hi  issjt. 

\\\i\.  'V.  l)ra<>L;',  called   on  lieJiidf  of  (Jreat    liritaiu, 
testified  that  the  •>r>tli  of  Amnisl  was  the  last  lowerin-''^.-,'"'"'  ""' 
day  of  the  Mnmi'ir  Mar  in  tJie  year  1S81I.' 

Win.  J.  (ioudie,  witness  calle(l  on  liehalf  of  (ireat 
Britain,  stated  that  his  vessel  stayed  in  the  sea 
until  .some  time  in  ( »ctol»er  for  the  purpose  of  makiu"' 
a  raid  on  the  I'ril.ih.f  IJmh.K    l.„t  fl,.o  H,,,  I.,..f  1 .T"  R"''"M'"«">- 


ine 

0 


niu-  ( 


aid  on  the  I'riliilof  Islands,  Imt  that  the  last  I 
lay  for  the  purpose  of  seal  hmitiiii:'  was  het 


\\\v  ;J()tli  mill  ;J.',tli  of  Aiunisl 


ower- 
weeii 


Captain  Hansen  testified  that  he  left  Herinj;' Sea  the 
iiltllr  lit'  Aiiiiiisf  on  the  Aih/i.      He  afterwards  stated 


III 


as   tile    reason 


that 


le   could   do   nothiiiji-   with    1 


K.,  til.".,    line 

l.'l. 


Indians:   that  "thev  would  not  hunt 


us 


inv  more. 


B  s- 


.■51 


242        DURATION    (iK    THl;    SKAMNU    SKASON    IN    HKkING    SEA. 


K.,  557, 


I"'e      ("itptaiii  .MiiUT  testified  tliiit  lie  It't't  tlie  scji  in  l.SHU 
"tlie  hiftf)-  jKtii  of  Jiii/iisf.' 

This  testiiiKiHV  of  the  witnesses  reliitive  fo  their 
iictniil  e\]H'rience  in  the  \  e;u'  ISSl)  estiihlislies  tliMt 
thei'e  \v!is  not  ;i  \cssel  in  Uerinii'  Se;i  in  Septeniher. 
ISSlt,  foi'  tile  pni'iiose  of  sciihiiu',  luul  \ ct  in  some 
instiUiees  tlie  •hiini  is  nuuh'  for  the  seiih'nu-  senson 
extendiiiii-  nntil  thi'  1st  of  <  )(rol)er. 

The  testinion\-  relieil  upon  to  thus  extend  tlie  ilnrii- 
tion  ot  the  \o\iiy'es  ol'  tliese  \-essels  which  weri'  inter- 
niiited    1)\ 
en 


tile  cruisers  of  the  I'niteil  Stiites  reliites 
rirel\-  to  the  x'eiir  1  SlMi.  There  iin-  no  cliiiins  liet'ore 
this  llinh  ( 'oniiiiis>inn  for  \essels  wiirned  in  the  \ CiU' 
1S!I(I,  Mud  tile  testiiiion\-  relntin;:'  to  th;it  \ cnr  is  remote 
when  used  tor  tlie  purpose  nl'  estidihsliinu-  tlie  duni- 
rioii  of  the  season  of  1  ss;), 

(  'oiisiderin^'  the  testimoux  ot  "//  the  witnesses  relnt- 
.f  \essels  ill   IS'.M),  the  weijiht  of 
tesrimoiix    siiniiorts   rlie   statements  iiiaile  relati\e   to 


in^i'  to  rile  xoxaiic 


tl 


le  duration  (»t  the  season  in  toi'iiier  xcars. 


W.,  (ili5 


!'">'      ( 'apTaiii  \'icTor  .lac 
ot  hiinrinii'  in  lS!to  wm; 


onsen 


testilied  that  the  last  dav 


the   •.•'/>/  "/  Aiiiiiisf.       Ilesaih 


the  MnitiH . 


\i,.  tion. 
31. 


ii'"'      ( 'aptaiii  ( 'has.  Ilackett,  a  witness  on  liehalf  of  (ii-eat 
liritain.  of  the  Aini'ir  ('.  Mimrr.  said   that   he  "ave  iiit 


sealinir  on  the  I  III/  aj  .liiii/i.>l.  .ind  that  he  stopped 
accouuT  of  had  weather. 


on 


(  'Hiri!. 


HiriT^lin 


("1; 


ireiice  (  'ox,  inasier   ot 


the    'rriiini/ili    ill 


1«1M>.  TK-stiliied  that  the  l!>fh  <>t  Aiii/ir-f  was  the  last  d,i\ 


he  liiniteil  111  that  \ car. 


If .  •i.-.s. 


liiii'      ('apt.aiii    .Miller,  cdiiiiiiaiidiii::'   the   .I///V   /.  .!///'/■  in 
iSMd.   test||i,.ii    that    lie   Irtf   ••aloiio-   the   lirst    nai-t   of 


>(  ptemlier. 

'.  'apt  lin  Lauiihrm  .\l(  I 
iff  in  IS'.X),  testitied  rliat  the  last  dav  h 


,ean.coniniaiiilnm'  tne  i-nnnir- 


e   low  ere(|   w  ;>(* 


|{..  751,  liiii'the  /////  of' .liii/iisl.  -Mwil   stated    that    the  weather  wa> 
^■eiK  ralK'  worse  in   Tire   last   part   of  .Vu;;usr   than    it 


K..   751. 

Ill 


as  in  . I  Illy  or  the  first  of  Au<4'iist. 


DIKATION    t»K    Till-;    SEAMNli    SEASON    IN    liKKlNti    SEA. 


i4'd 


('ii|itjliii   Jcfliii    Steele,  lit'  tlie   T/icrcsd.  t<'stilie(l  tiiiit  K. 


tlie2;itli  di' August  WHS  theliitest  lie  wjis  e\-er  in  li 


1(I7X,  line 


,(.]•- 


1(1. 


iiml  tliiit  WHS  the  \-eiir  \X\H).      His  l;ist  se;iliii<i- 


mi:-  r 

ill  lliiit  vciir  WHS  (Hi  tl 


U'  :J-^lli  i/a//  of  .lnijiisf. 


(";il)tiiiii  Allierr  Fulji-er.  oftlie  /'n/ilnj,r.  testilied  tli;ir 
the  liist  se;iliii,ii'  diiy  in    l«!l()  wiis  iilidiit   \\\i' :>titli  <ij 
.  I  iif/ii.st. 

('ii]itiiiii  Frederick  I'iUiie,  ot'llie   IT.  /'.  Sm/ininl, 
the  yeiir  ISIK).  testitie<l  thnt  the  hist  1 
.ilioiit  the  •/S'/A  III'  Amiiisl. 


i;.,  1117s.  line 
11;. 

I.'.,  lUMi.  line 


111 


uweriiij;'  (l;i\'  wjis  ]■,   |- 


liiie 


1; 


leixldi'e 


M 


iLilU'seii  siilil 


>t'  the  \(i\- 


!"•(■   (1 


lie  Si(t 


jIoii  : 

i).  And  wlieii  did  yun  loavo  the  se;i  in  Septeniher .' 

A.  I  left  it  on  tlic  141  li. 

(}.  Hii  that  fioni  the  lirst  tothc  1  Ith  you  <-an{;lit 30(t  seals? 

A.  1  tiiiiik  so:  jnctty  lu'ar. 

Q.  Was  tiicic  jiietty  jiood  wcatlier  in  S('i)tiMnl)(>i"/ 

A.  Sei)tenil)er  was  tine,  tiio  lirst  part  of  Seiitemiicr. 

(}.  In  fact  yon  did  hotter  work  in  September  tliaii  von  did 


li..  Hicl.  Ml 
IG. 


in  Aiiftnst  ? 

A.  Yes;   1  did  notliinj;-  in  A 
was  too  stonnv. 


iijiust.  nor  ill  .Inly,  eitlior.     It 


i).  So  that  tliese  people  who  tell  us  you  can  not  lish  in 
Septeniher  on  accoiint  of  tlie  weather,  they  don't  know  aiiv- 
thing  about  it.  do  tliey.  Captain  .' 

A.  (Ml.  no:  you  can  get  lots  of  seals  in  September. 


Hrit 

StJdv 


his    witness   is  ei 


nil 


te.l 


111   the 


Ar- 


iiiiieiit   iur  (ireat 


as  a  witness  calleil  mi  itelialf  of  the   I'nited 


II 


e  was  CM 


led  (111  liehalt' (d  the  I'nited  Stat- 


i(ir  the  luii'iKise  oi'  ascenaiiiiii<i'   inturniatidii  rejativo 
to  the  catch  and  the  dnratioii  of  the  sealiiiii'  season. 

1  was 
le  seaiiii'''  sea- 


No  witness  examined  on  hehalt'  <d'  (ireat  Hritaii 
■ver  asked  reiiardinj>-  the  diiratioii  of  tl 


soli.  Tills  witness,  however,  was  the  mate  of  tli, 
M'nni'ir  at  the  time  of  her  seizure  iind  was  afterwtirds 
a  witness  on  liehalf  of  (treat  Uritain  in  the  claim  of 
the  M'nni'ir.  and  was  a  sealino-  captain  out  oftlie  port 


(if  N'ictoi 


la. 


("ajitain  K'oliert  \\.  .McKeil.  a  witness  on   la-half  (»i 
(ireat  Britain,  testilied   relative   to  the  \(i\ii"c  of  the 


h'..  (1- 


Hue 


!l 


t  1. 

1. 


tt 


244       DURATION    OF   THE   SEALING   SKASON    IN    BERING   SEA. 


K.  /I.  Miuriit  ill  ISIIO,  jiiid  siiid  tliiit  tlic  lust  iliiy  of 
liuntiii^i'  wiis  tlu'  :i<tfh  or  .V/.s7  of  Annii-sf. 
R.,Til.liii«4.      (')i|,tjiiii   I.oiiis  Olscii  testified   tliiit  the  .liiititiiii  left 
tile  seii  "tile  2iid  of  September."      He  eoiild  not  state 


tl 


W.   lino 


le  liist  illllltlll"'  (lilV, 


4H 


C'iiptiiiii  W .  K.  Bilker  testified  relative  to  the  voy- 
R.,724,lin.'5.  au'c  of  the  ViCd  ill  the  year  1S!I(),  statiiiii'  tliat  he  took 
seals  eiji'ht  days  in  Se|)teiiil)er;  that  he  remained  in 
the  sea  and  that  his  last  sealiiii;'  <la\-  was  the  l.'^lli  nf 

Sijifrjiilirr. 

Captain   Siewerd,  whose   testiiiionv  was  not   taken 


K..  liMii.  lin,.  Ill  court,  lint  wliose  statement  was  takei 


1,  said 


that 


w.,  li- 
.i;t. 


IfJ'/  the  sea  on  the  (itii  of  Septemher,  in  1S!I(). 
7(»,  liiii'  Williiiiii  ()'Lear\-,  testifviiij;'  relative  to  the  voyajiv 
of  the  W'xifir  L.  iHrh,  iii'lS!l(),  said  that  he  left  the 
sea  "some  time  towards  the  end  of  Aiiiiiist,"  and 
added  that  he  did  not  think  he  was  eyer  in  lieriiii:' 
Sea  later  than  the  :J-'>fli  nf  Aiijinsf. 


line 


William  (i.  (Joudie,  testifVinji'  relative  to  the  v 


i>y 


t!l. 


Tr.T,  iiiicjii;c  of  the  Sapjiliin;  in  ls;»o,  said  tliat  they  left  the  sea 
on  the  /;///  or  /.v/// of  Aiiji'iist.  Captain  Cox  testified 
he  left  Aiiji'iist  J.'ifli. 

llerman  Smith,  testif\iiij4-  in  liehalf  of  Creat  IJrit- 


R.,  listi,  liii 
40. 


am,  said 


that 


lie  was   on   tlie 


If.,    (illi,    hlic 
17. 


/rfl  tl 


11-  sea  on  tlie 


Kofh 
■  >lsf  (if  A  III/ list. 


'irriiir  ill    ISIH),  and 


(iiistave  Hansen,  master  of  the  J'/r/r,  testitied  that 


1h'  left  the  sea  the  l:Jlli  of  A 


III  I  list. 


The  testiiiion\-  shows  that  hut  three  vessels  actnalh 


ale(l    in    Heriiu 


tl 


ea    111   tne   iiioii 


th 


Sentemlier. 


diiriiii;-  the  entire  jxTiod  from  ISSfJ  to  ISDO,  inclusive. 

These  three   vessels  are  the  Moiiiiliiiii  Cliirf',  in  ISSS, 

liich 
were 


1  place   111  w 


which  took  si.xty  seals  in  the  I'a^ 
the  liecord  discloses  the  l)oatsof  no  other  vessel 
ever  lowered,  and  this  was,  therefore,  a  chance  pick- 
up of  seal.s.  The  Vim,  in  lS!/(t,  which  took  370  seals 
in  Septemlier;  and  the  Sra  Ijoii,  in  ISIIO,  wiiicli  took 
'•ahoiit  MU(t  seals  in  Septemlter." 

The  total  luimher  of  seals  taken   hy  hunters  who 


DURATION    OK    THE    SEALING    8KASON    IN    HEKING    SEA. 

fcstirtt'd  oil  tlic  wifiicss  stimd  iit  N'icturiji  aiuouiitcil  to 
ni'Mi-ly  Tii.OOo.     Tlic  totnl  iiuiulK'r  tjikcii  in  Si'pti'iii 


i45 


•r  wiis  730.     'I'l 


k;  |»rn|)(irtinii  tiiki'ii  in  the  iikhi 


itli  of 


St'|>t('inl)t'r  is  MS  one  to  one  liiindrtMl. 

'I'lic  I'liitcd  Stiitfs  coiitciid  tliiit  there  is  no  tfict  in 
the  Record  so  liniily  estiildislied  iis  tlie  titet  tiiiit  the 
reriniiiiitioii  ot'  |irolitiii)h'  sejil  liiintiii«>' in  IJeriiiu' Sen 
WJis  iietweeii  the  "iOth  iind  "Joth  ot   Aii<;iist. 

The  Ar^iiinieiit  on  i)eh!ilf  of  fSrejit  Hritiiiii  cites  the  "'!!■  •^•'S-.  !'■ 
witness  Steele  iis   sjiyiiii;-  tli;it   tliere  !ir(^  "  some   tine 
(hiys  in  Se|)teniiter,  and   that  some   tine  catches  are 
made  in  tliat  month."     ('ai)taiii  Steeh-  was  never  in ]{.,  kw,  line 
Heriii"'  Sea  in  SeptemixT,  accordinji' to  iiis  testimony.     "'• 

Captain  Hakeris  cited  as  remaininii' in  tlie  sea  until '*■,■„"-"•  '■"» 
tile  L*iid  of  Septemlier.      'The  record  discloses  tliat  his 
last  sealiiiji'dav  was  .Viiji'iist  21. 

tatemeiit  is  made  that  Captain  .lacol)seii  re 


Tl 


le  s 


mai 


lied  in  the  sea  in  1S88  until  the  7th  of  Septem- 
lier.  'I'iie  testimony  of  Captain  dacoltseii  states  he 
left  the  position  in  the  sea  where  he  was  sealiii<4', 
SeptemUer  3.  and  does  not  state  when  he  hunted  last 
l)efore  that  date. 

'I'lie  statement  maile  that  in  certain  vears  there 
were  only  a  limited  niimher  of  l)oats  (naminii'  them) 
which  remained  in  the  sea  without  interference  is 
correcteil  hy  the  testimom'  here  jii\'en. 

'i'he  testimony  cited  in  this  .\rnument,  estalilishino- 

the  termination  of  the  hunting'  season  in  iieriii;;-  Sea, 

Iocs  not  relate  to  the  vo\aiies  of  vessels  warned  or 


interfered  with    hv  revenue   cutter; 


Wl 


erever 


tl 


le 


testiiiiuiiy  disclosed  that  the  voyaji'e  was  interfered 
with  in  any  manner  no  reference  has  heeii  made  to 
tlu'  testimon\-. 

The  statement  made  in  the  Arirnmeiit,  of  the  latest  "■''■  •^•'K"  i' 
voyaiii's  ever  made  in    Heriii<>'  Sea  and   all  made  in 
the  year  1S!J0,  corrected,  would  read: 

Sni    Liitii.    14    September;     Vim,    12    Septemlier; 
(hidii    l>rlh\    (i    Septeinl)er;  JiKdiihi,    2    September; 


(ii»,  line  17 


ill 


It 


2-H)       DUKATION    OK    TIIK    SKALlNti    SKASON    IN    HKRlNti    bKA. 

ir.  /'.  Sdi/ininl,  2S  AiljiUst;  I'ciicloiir,  'JG  Alli;llst: 
/•.'.  11.  Man  ill,  31  Aiij:iist. 

'I'lic  incniu'c  (if  these  diites  is  Se|iteiiil)er  A. 

( 'ii|)tiiiii  Alexjiiider  .McLeiiii  is  cited  in  the  (»i)|»nsii|M 
Ar;^iiiiieiit  iiiid  tlie  dltserviitioii  iiiiide  thiit  the  iiiiswer 
statinji'  that  he  "li;:iired  on  jicttiii^'  hack"  alMHit  the  last 
ut'  Aiiji'iist  and  the  Idth  ot'  Septeiuhei',  and  the  answer, 

...1  •  .1.    ; i       •-.    ..    :..    I'.. 11    ;.     »i.       i)..r.:.l.      \ .^ 


U.,    irc,  line 
05. 


iisKcii,  ill  iiie  nine  iiiis  iesiiiiiim\  »ii>  jiiM-ii,  ii  mere 
was  any  inconsistency,  and  calh'il  attention  to  the 
fact  tliat  the  later  time  includeil  the  time  re(|nired  to 
make  the  ivtnrn  voyajic. 

In  conclnsion,  every  witness  whose  testimony  is  in 
the  Iki'cord,  when  asked  ji'enerally  fe<iafdin<i' the  close 
(if  the  sealing' season  in  Hefinji'  Sea,  Hxed  the  tei'niina- 
tioii  of  proiitalile  huntiiifi'  as  hetween  the  "iOth  and 
'J.'ith  of  Anjiiist.  There  is  no  testimony  in  the  Record 
•iiven  by  a  ca|itain  who  was  in  the  sea,  and  therefore 
based  n|i<in  actnal  exjierience.  extendinji'  the  season 
into  the  month  of  Seittember. 


r 


"METHOD   FOR   COMPUTINO  THE   ESTIMATED   CATCH" 
DISCUSSED. 

Tliiit  portion  ot' tilt'  Arji'iiiiiciit  on  licliiilt' of  ( Jrciit 
liritiiiii  cntitliMl  "  Method  t'or(  "omputin^'  tliu  Kstinifitod 
( 'atcli"  possi'sscs  an  ori^iinnlity  which  makes  it  uni(|ue 
ainonj;'  tiic  t'orinula'  which  have  prcvionsh-  hccn 
('in|)hty('(l  in  dealing'  witii  tiic  siil)jcct  of  prolta- 
hihtics.  WliiK'  the  I'nitcd  States  insist  that  "pros- 
pective profits"  can  not  be  alhtwed  in  anv  event, 
and  fnrtlierniore  that  the  continji'cncics  whicli  neces- 
sarily appertain  to  seal  hnntinji'  preclude  the  I'esnlts 
from  l)ecomin<i-  a  legitimate  Held  for  mathematical 
demonstration,  the  method  for  compntation  proposed 
is  so  extraordinary,  so  nnjnst,  and  so  nnreasonalile, 
that  it  can  not  l)e  passed  over  without  connnent. 

In  brief,  the  scheme  advocated  is  tliis:  to  take  the 
catch  of  the  schooner  M((if)  Elhn  in  ISSfi,  which 
took  in  that  year  fhr  liiiyist  iiKiiihn-  of  skins  m-r 
fdkoi  1)1/  (III//  rcssr/  ill  /Icriiii/  Sen  of  which  we  have 
evidence,  and  calculate  from  the  data  of  the  vovau'e 
how  iuany  seals  were  secured  on  the  average  bv  one 
of  her  hunters  duriuji'  the  period  from  the  date  of  the 
seizure  or  warning:'  of  the  vessel,  for  which  the  catch 
is  bcin<i-  computed,  to  the  'ifth  of  Aui;ust,  the  day 
when  the  ^[(ll■f/  FJIrii  ceased  huntinji'. 

'I'lie  scheme  is  c(tmplicated  by  a  calculation  of  prob- 
able hunting'  days,  which  makes  the  method  more 
involvt'd  without  ati'ectinii'  the  result;  for  example,  in 
the  case  of  the  ('(inili'iid,  ^^iven  in  the  Ar^'ument  to 
demonstrate  the  application  of  the  system  ])roposed, 
it  is  stated  that  o  boats  on  the  Man/  Kllni  were  in  the 
sea  24  days,  whicli  would  e(pial  I'JOdays  for  1  boat; 


?»7 


> 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


&c 


//     ^y^^ 


4^ 


4^ 


1.0   ^1^  ta 

^M  S^  §21 

1   1.1       f.""   1^ 


I 

Inns 


-> 


^ 


■^' 


Ho 


HioliOgraplii 

Sciences 

Corporation 


ri>^ 


v 


« 


\ 


;\ 


^ 


33  WIST  MAIN  STRUT 

WIBSTIR.N.Y.  MStO 

(716)172^503 


O^ 


■ 


^ 


^ 


I  . 


24h  e8ti.matei»  catch  DlScrSSKD. 

tliiit  tlu-  "  lowering-  diiys"  wen*  (isA,  iind  the  cjitcli 

!I">S;   tliiit  the  4   «-jiiiiics  <»t"  till'   Ctiniliiia  woxM  lii.vc 

lu'cii  in  tlic  s«'ji  31  (liiys.  or  rj4  djiys  for  1  cjiiioi';  the 

t'onniiiii  tlicn  :i<lo|it*-<i  is  tliis: 

!t.')S      liS..'iXl24 

,-w  -X        ,.,,,       — tlif  nroliiiltlc  i-MchtA'  \\,i'  Canilriio. 

It  is  ji|»|ijnfiit  tliiit  (ix.\,  tlu'  iiiiiiiltcr  of  liuiitiii<i'  diivs, 
is  sii|icrriiioiis.  iiiiil  ciiu  li!iv«'  no  ctfi'ct  upon  tlu-  result. 
'I'liis  tiictoiof  "lowerin;^'  tliiys"  iippein's  to  liiive  lieen 
in.serteil  in  tlie  pioltleni  for  the  iiurpose  of  nisikin^'  it 
seem  more  pliuisilile.  while  in  iiict  it  only  tends  to 
eom|ilirjite  iunl  mystifv.  Stri]>|teil  of  its  superHuous 
fiictor,  the  tormuhi  proposed  in  the  Ar<iument  is  this: 
'I'lli   t  lit)  li  lit   Hir    Mtiri/  I'.lliH,  fidlll  fill'   illlfr   of  siliiirr 

(oc  irnniiiii/)  of  tin    sihinnnr to  Aiii/nst  :Jf.  ili- 

rhliil  III!  till-  iiiiiiilii  r  oj  lion's  mi  tlir  Mnri/  Kllni,  tiiiii> 
tlir  II II mill  r  III  ililifs  t'rnill  tlir  ililli   ot  srizilir  (iir  iriiniilii/) 

ot  till-  m  liiiiiiii  I  to  Aiiifiisl  •//,  mill  iiiiilti/iliiil  liji 

till-  iiiliiiliir  lit  lioills  (or  iiiiiiiik)  nil  tlir  siliihiiirr  , 

tiiiii s  llir  iiKiiiliir  of  till i/.s  from  ilnli'  of  sv'iziii'v  (or  irnrn- 

hlfl)  III  til,  jiii  sHilllllilr  iliisi  of  till  sillsiiii,  llflllll.s  tlir 
/irnliillili    riltrli  iit    tlir  si  liiiitlirr  . 

The  fjirts.  whieh  it  is  m-tvi-ssiU'v  to  iissmue  in  <irder 
thnt  this  method  of  cidi-uliitioii  nwiy  Im-  applieil.  ;u'e 
so  mnnerous,  iind  at  the  same  time  so  uneertain  in 
thems«'lves.  that  it  is  ditlieult  to  understand  how  such 
a  mathematieal  srheme  eould  ha\('  heen  su;i';i'ested  to 
the  lli;;h  ( 'ommis>ion  as  a  means  of  determining 
approximate  eertainty.  That  these  assumptions  .Me 
reeouni/.ed  in  the  Ar;;ument  on  Itehalf  of  ( Jreat  Britain 
is  shown  in  the  illustration  they  j;ive  of  the  applica- 
tion of  their  fonnula.     The  Ar;iinnent  says: 

FJi.  AfK.,  X'J,  It'tlii'He  tVair  iiieii  jliuiitfrs  on  the  CnroU'iiH\  Iniil  lifcii  irork- 
hiij  in  miiUnij  iriitrm  liiiriiiij  flic  irliolf  of  Anijiiiit,  wrnthrr  niol 
othrr  coHilitioiiH  firing  ximiliir  to  thai  ci'iirrirnrvil  liy  the  Marii 
Klltti,  tlie  total  woiihl  b«'.  etc. 

These  assumptions  as  to  the  duration  of  tin-  sealinj; 
vova;>e  in  iierin^'-  Sea,  the  universalitv  (tf  weather  in 


line  13. 


t  ■  a 


ESTIMATKI)   CATCH    KISCISSEK. 


249 


dirti-rciit  jmrts  of  the  wiitcrs  tViM|Ut'Uti'(|  l»v  tlu'  sciil- 
iii<>'  vt'ssels,  iiiid  "otluT  cniKlitioiis"  an-  all  in  tlicm- 
rselvfs  |)r<il)al)ilitics,  ami  so  |»n»l»l«'iiiatic  as  to  tlcniaiid 
siitKciciit  ilciiioiistratioii  ot"  tln'iraiiproxiniatc  fcrtaiiity 
Ix'torc  tlu'V  can  Ik-  «'1ii)>Iov«mI  as  a  liasis  tor  arriviii^i' 
at  another  proltaltilitN .  '1  licy  liave  liecn  t'nlly  (h-alt 
with  in  this  Ar;:unient  un<h'r  tlu'  titles  of  "  Munition 
of  the  sealing;'  season."  "No  detineil  sealin;:'  <iTounils 
in  lierin;;'  Sea,"  ami  "I'ncertain  charaeter  of  seal 
huntinji"."  to  whi«'h  lefen'iiee  is  here  ina«le. 

•  )n  reviewing:-  these  assinnptions,  toestalilish  wiii<'h 
no  atteiMpt  is  nuxle  in  the  Ar<>'innent  on  Itehalf  of 
(ireat  Mritain,  except  in  relation  to  the  duration  of 
tlie  season,  the  ahuiidanee  of  seals,  aial  the  limited 
area  in  which  they  an-  fouml,  yet  without  which  the 
nietlii  •'  proposed  can  not  he  applied,  it  is  appan-nt 
the  riouitications  of  these  proltahilities  are  so  wide 
that  there  is  not  the  sli<ilitest  hasis  upon  which  to 
found  the  fornnda  proposed  in  the  Ar;>'ument  on  l)ehalf 
of  (ireat  Britain  for  a  computation  of  an  estiinate<l 
catch. 

The  followin;:-  statement  apjiears  in  the  Arj;ument 
without  mar;^inal  reference  to  tlie  K'econl: 

It  is  sliown  tliiit  b(mt.s  took  siliout  one  tliird  iiion*  than  an  Iti.  Art: .  T!*, 
equal  uuniber  of  caiUM's.  liin'  !'• 


An  examination  of  the  IJeconl  fails  to  disclose  niton  !!''*,-'y  "If" 
what   evideiu-e   tins  statement   is   hased.      I  here  vrv    tio. 
iunnerous  witm'sses  who  testify  that  a  Itoat  is  supe   ' 


40:.', 


lie 
liiif 


rior  for  seal  huntiu"-  to  a  canoe,   lait  evidence  of  a  K..  ":>!•,  line 
ratiii  hetween  them  is  aIto;i'ether  lacking:-,  except  that 
of  two  witnesses,  who  make  definite  statements  upon 
this  point,  viz:  Captain  Alexander  .Mcl-.ean  an<l  Cap- 
tain McKiel. 

The  former  in  his  examination  jiave  the  followinji' 
testimony: 

i).  What  ill  y«»iu'  .jiiilgiiient,  I'roiii  your  oxiterieiiw,  is  the  U.,  li'l,  lino 
conipnrative  value  in  scaling  of  canoes  to  boats?  "• 


i 


B    8- 


-3\i 


250 


KSTIMATED   CATCH    DISCUSSED. 


fl 


^ 


A.  It  will  take  iiioru  than  two  caiineH  to  coiii])etn  with  ii 
i;oo(l  wliitu  hiiiitiT. 

<j.  You  mean  witii  IiitUana  in  iff 

A.  Vi-N,  8ii-;  I  have  loiii  d  them  to  be  so,  and  have  iieard 
it  from  other  vessels.    Of  eonrse  there  are  exceptions. 

(j.  Name  the  exeeplions. 

A.  >Some  vessels  with  Intlian  hunters  make  very  lar^e 
catches. 

<j.  Is  that  heeause  of  the  skill  of  those  Indians  * 

A.  Yes,  sir. 

*}.  Those  are  exeeption.s,  are  they  not? 

A.  They  are. 

Tlh'  iinswcrot'  Cfiptiiiii  .McKit-l  tn  ii  <|ii('sti(>n  rolat- 
iii<:'  tn  tlic  |iri)|Hirti<>iiiit<'  liiiiitiii}:'  power  of  hoats  and 
fniliH's  was  iis  follows: 

K.,  Slit,  lin«<      Well.  I  can't  say;  but  I  think  six  jjood  white  hunters  would 
'•"'•  be  e<|ual  to  ten  eanoe.s — the  averajfe  canoes. 

(j.  You  are  now  com]>iirin;;  white  hunters  with  Indians  in 
canoes? 
A.  Yes. 

No  wifiu'sscs  wen'  |iro»liic(Ml  to  contriRUct  tlii'sc 
statcmi'iits. 

.Mtlioii;ili  tlicri'  is  no  atti'iiiptto  cstaldisli  tlu-  assiT- 
tioii  in  tlu'  .\r^'UMU'nt  on  Ix-lialt' ot  ( ircat  liritain,  ami 
no  otlicr  n'tcrciict'  is  niiKic  to  tlic  snltjcct,  it  is  of  the 
jiTciitcst  iniportfUHT  in  any  iittcniiit  to  rearli  a  Itasis 
from  wliifli  to  calcnlatf  a  "proWaltli'  catch,"  for  of  all 
the  vessels  for  wiiicli  elainis  are  niaile  for  sncli  earn- 
in;is  liefore  this  llitiii  ( 'onnnission,  Itnt  fonr — the 
!!•-'.?•-"",'"*• '/'A'""'""   ill    li^H«i,   anil  the  Triiiiiiii/i,  I'dflifimln;  tmA 

U..    J>>.>.    Mill'  ...  1  1.1  .11. 

:Rt.  _  Anrl  ni    1  H.S!t — eni|tioye«l    sealin<>'   l»oats  with    white 

'*■,•)-■'"'■  '"'"hnnters.  In  the  case  of  the  Ciiiofrini  canoes  were 
R.,  :ti'!i.  lin.'iisetl.  and  Mlthon;;li  the  .Vrjjnint-nt  on  liehalf  of  (Ireat 
Mritain  assumes  that  two  white  men  in  a  canoe  are 
e<|nal  to  three  in  a  lioat,  all  the  evidenci'  which  is 
worthy  of  eonsideration  tends  to  disprove  the  assinnp- 
tion. 

Ketmniny'  to  the  fornnila  proposeil,  let  ns  iipply  it 
K.,  2X0,  liiinliy  suhstitntiny  in  place  of  the  Mtirif  l-lllvii  the  Tlioiii- 

\{.,"x\-j.  lino''^"-      I'lii'  liitterenti'H'd  the  sea  on  .Inly  2,  1S8(I;  was 

'is. 


KSTIMATKD   CATCH    1>IS(;IIS8KD. 


251 


SC'IZ(*< 


1  A 


U"US 


t  1       Sli 


(It 


//// 


If  ciiiTM'd  tdiir  luiiitin;i' iMiiits  witli  |.     ,,.,.,    , 


Tc  men  III  ii    hoiit,  iiiid   her  ciitcli   ii|i  to  tlic-  tunc  n 


»     I- 


seizure  wiis 


4o;{. 


As  it  iiiiist  l>e  Jissiiinetl  in  tlie  Ar;iiliiieiit  on  Iteliiilt' 
of  (irciit  liritiiin  in  coininitiiifi' the  ealcli  of  tlie  Tlmrn- 
t(ni  l>y  tlie  proposed  inetlKnl,  tliiit  lier  liunters  wt-re  lis 
expi'i't  iis  those  of  the  Mnifi  I'.lliti,  iiinl  Wv  fortune  in 
tiinlin;;'  sesih.  'ijUiil  to  thiit  of  the  hitter  vessel,  tlie  siiine 
iissinnptioii  is  ;i<lopte<|  for  the  purpos«'s  of  this  Ar;iii- 
iiieiit.  The  iiveni^i'e  cjitrh  per  (hiy  for  i-jieh  hunter 
oil   tin*   Tliiinitoit   would   lie  tor  the  tliirt\'   fhivs  she 


wiis   sejihiit: 


;{.;{(; 


AppI 


vinij' 


th 


iiv'-rii 


iii'   to    th 
sinned   I 


)V 


extension  of  the  Citroh mi's  \o\i|Me.  iis  |»rt 
the  Arjiiiineiit  on  hehiilf  of  (Jreiit  liritiiin.  her  «'!itch 
would  l»e  417  seals.  It  niiiy  he  iiryued  that  it  is  not 
a  just  eoinparisoii.  from  the  fact  that  the  hiintinj;'  of 
the  Thonifoii  took  place  in  .luh',  while  the  operations 
of  the  Miirii  l-'.lhii,{\\\  which  the  calculation  is  hased, 
were  in  Au<iiist.  'The  Matfi  Ellin  in  thirt\-four  davs 
prior  to  Au;;iist  I  took  1,4.'{7  seals,  while  in  twenty- 
four  days  in  Au;iust  slu-  took  !>"iS.  the  daily  average 
in  ,luly  exceediii};  that  for  Au;iiist.  if  there  is  any 
advantage,  tlu'relore.  it  is  in  tavor  of  the  ('lunlnm. 

Another  fact,  to  wlii<"h  the  attention  of  the  llifili 
( '(•minissioiiers  is  called,  is  that  the  tlailv  avera< 
a  hunter  on  the  Mai  if  Ellin  in  duly  was  S.41  seals, 
and  tor  a  hunter  on  the  'Jlinnitini  was  H.'Mi. 

As  a  further  test,  let  us  suhstitute  the   IT.  /'.  Siii/- 
ininl  for  the  Mmii  Kllvn. 


•t 


It  is  stated  in  the  Mritisli  Aryuineiit  that  the  record 


of  the   W.  I'.  Si 


iif/iriiiil  IS  iiicomp 


lete, 


hut  an  exainma- 


Itr.  Arn.,  7!», 
Iiiip:i5.  li., 
271). 


tioii  of  the  testimony  of  Andrew  Laiii<>'  di.sclo.ses 
that  tli»'  data  fin-nished  l>y  him  is  siithcieiit  tor  the 
purpose  of  comjmtinji-  and  estimatinp'  a  catch  l»y  the 
metliod  projMtsed,  as  we  have  shown  that  the  data  in 
■;fard  t< 


I't 


o  "loweniifi'  days    are  siiiiertliious 


Hi 


Furthermore,  there  is  no  evidenct-  l»efor«'  the  lli<>li 
('ommi.ssion  showiii"'  that  the    IT.   /'.  Sm/intnl  was 


1 '  '■ 


252 


K.,  um, 

17. 


R.,  a7i, 

s. 

K.,  W.tX, 
12. 


ESTIMATED   CATCH    1»I8CU88ED. 


K.,   710. 
28. 


R.  1725, 


iiitt'rt"«MV(l  with  <luriii«f  licr  cniist',  mikI  Lainj;',  her 
iiir.ti',  Mini  !i  witiH'ss  swonioii  l>«'liiilt' ot"  Grciit  Mntiiiii, 
was  not  <|iifsti<in('<l  mi  this  point. 

"""  It  should  also  1»»'  notod  that  the  hist  'MowtM-iiiy"  of 
the  II'.  /'.  Sii/fiidnl  was  tht*  saniv  ihiy  as  that  of  thi' 
Mdifi    Ellin.     Tlu'  foniicr    in    tlio    year    lSS(i   ciir- 

'"'"rit'd  »'i<ilit  caiwK's.      Ilt-r  cati-h  tor  tlic   rir.st  twciitv- 

liiK'foiir  days  of  Au;;nst  was  ,"tl2.  Thr  av«'raj>»'  daily 
catcli  for  one  caiiot'  rhiriii;;-  tlit-sc  tw«'nty-foiir  days 
was,  tlii'rt'foit',  1.S!I7.  .Vssinnin^i' for  tht' sake  of  ar<«ii- 
iiu-iit,  and  for  the  |Hir|iosc  of  (■oinpariii';-  this  hasis 
witii  the  oiu-  ciiiphiycd  iiv  (treat  Mritain,  that  thi' 
('in(tlnin\\im\*\  have  sfah'dtlic  fiitirc  iiionthof  .\iit>iist, 
we  woidd  liavc  an  avcraiic  catt-h  diiriii;;-  that  month 
for  each  canoe  of  .~>7.>>:  and  th«'  four  eanoes  used  l»v 
tile  ('(irnlriiii  woiiM  liave  taken  '2'iil  seals. 

.\iiain,  h't  us  take  tlie  IT.  /'.  Sitijiidiil  in  ISS!)  as  a 
Itasis   in   |ihiee  of  tlu'   Mki/i  Kllrii.     Slie   entered  the 

''"«.sea  tiiat  year  on  July  7.  and  lowered  hist  on  Aiijiusi 
IS,  a  p»'riod  of  torty-tiireeday.s'  iiiintin;.i'.  She  carried 
14  eanofs.  and  iiiad«'  a  eateh  of  1,'S12:  the  avera;>o 
|ter  day  for  eaeii  eaiioe  would  lie,  tiieiH'fore,  .'{."-Ul. 
<  hie  canoe  tor  tliirty-oiie  ila\  s,  the  time  chiimed  as 
tile  intended  voyaji'e  of  the  Ciiidliiiii,  would  at  this 
ratio  have  taken  10l>  seals,  and  an  estimated  catch 
for  the  ('iiihIiiik's  -l  canoes  would  therefore   lie   400. 

lino  Tak«'  the  same  vessel  in  181MI.  .She  entered  the  Sea 
June  21t,  and  lowered  last,  .\u;;ust  'JS,  which  would 
be  sixty-one  <lays  of  sealiiiji-,  in  wiiich  time  she  took 
in  the  iieiji'lihorhood  of  ")()(»  skins;  each  of  her  S  canoes 
had,  therefore,  a  daily  avera<>e  catch  i>f  1.024  skins, 
and  for  the  thirfy-oiie  days,  assunietl  as  the  tluration 
of  the  ('tiinlii)ii's  voyajie,  the  4  canoes  of  the  latter 
schooner  would  'lave  taken  128  seals. 

On  the  hasis,  therefore,  of  the  11".  /'.  Siii/iniril  for 
the  three  vears  l8H(i,  18S9,  and  18!t(),  we  have,  l»y 
adoptiii<>'  tile  method  propo.sed  in  the  Ar<>'unient  on 
liehalf  of  (treat   Mritain,  the  followin<>' variations  as 


KSTIMATED   CATCH    1)ISCU88KU. 


253 


nil  estinuitiMl  cjifrli  tor  tlu-  Ciirnhiia  iliirin;f  the  iiioiitli 
of  Aiifiiisf,  viz:  lMI,  KH>.  ami  128. 

W'v  may  also  CMinpan'  tlic  catclics  ot"  tli*'  ^ftnf|  Kllni 
ami  tli«'  ('iiiitliiiii  (hiriiio'  the  iiioiitli  of  .Inly,  lS8(i,  for 
rlic  purpose  of  reaeliiii;f  a  ratio  of  the  hiiutiii;''  power 
of  a  l»oat  usetl  on  the  Mtirif  I'lllni  ami  a  eaiioe  used 
on  the  Ciinilniii.  The  t-ateh  of  the  Mnifi  FJIvn  from 
the  2.Stli  of  .June  to  flie  ."Ust  of  July,  inelusive,  was 
1,4.'{7  seals,  whieli  would  In-  a  daily  avera;;*'  ••*  '"^-41 
seals  for  earl  I  hunter.  The  CiiidIiiki,  \\».s\\\\\\\\ir  that 
her  seal  in;"'  praetically  lM';>aii  on  the  1st  dav  of  did  v,  "...•»"•'.  ''"« 
took  in  thirty-one  days  (iS4  seals,  or  an  avera<>e  per 
day  for  eaeli  hunter  of  a.'il. 

Such  examples  of  the  application  of  this  method  of 
eom|)Utin^-  eateh  nii;>'lit  lie  nudtiplied  to  the  full  extent 
of  the  data  relatin;^'  to  the  70  vessels  <,«-iven  in  the  evi- 
deiiee  produced  het'on'  the  Commission;  hut  the  fore- 
;;-oin<i-  are  deemeil  sutheient  to  demon.strate  how  false 
the  assumptions  ami  how  faultv  the  method  proposed. 

When  tlu'se  (daims  were  uriyinallv  presented  to  the 
I'uited  States  in  tlie  ease  of  (Ireat  Hritain,  sultmittt'd 
to  the  Paris  Trihiuial,  the  nu'thod  of  rearhinji'  an  esti- 
niMted  catch  for  the  claimants  of  ISSd  was  l»v  means 
of  a  computation  hased  upon  the  averaji'e  numlwr  of 
skins  secured  i»y  thirteen  vessels  sealin<jf  in  that  year. 
Why  this  method  was  altandoued  on  tlu*  part  of 
(treat  Britain  is  apparent  from  an  examination  of  the 
data  for  IHSd,  which  is  printed  in  a  tahle  attached  to 
this  part  of  the  British  .\r}finnent.  The  avera^-c  reached 
in  the  ori<>'inal  .schetlule  of  claims  was  suhstantiallv 
the  same  as  the  Heriuji'  Sea  catch  of  the  Miiifi  i'Jhn, 
used  in  the  present  method;  hut  from  the  tt'stimonv 
jiiveii  in  conn«-ction  with  Kxhil>it  \\  of  the  de(dara- 
tions  made  hy  ,1.  D.  Warren,  as  ayent  for  the  claim- 
ants, it  appears  that  the  average    in   the   tahle   was  K., -'87. 


ol)tain(>d  from    the   catch  for  tlif  nitin 


srasoH. 


In 


or 


der,  therefore,  to  maintain  the  averajre  whi«'h  was 


advanced  in  the   orimnal  scheme  of  estiniatini>-  tl 


le 


2f)4 


K8TI.MATK1)   CATCH    UI8CJ:S8K1). 


« 


|irMl)jilil«-  iiuiiiIkt  of  s<>)ils  wliicli  woiiiil  liavc  Ih'cii 
tiikfii  l»y  a  sflitioii«M'  s»'iz«Ml  or  wiiniol,  it  was  iwccs- 
sarv  tor  tin-  «-laiiiiants  to  atlopt  some  otiicr  iiu'tliml 
tliaii  oiii'  Itascd  ii|)oii  an  avcra;>f  of  tlif  catclics  of  tlic 
vessels,  tlie  <lata  of  wliieli  wen-  <iiv«Mi  in  evidence. 
No  otiier  plan  than  tlie  one  presented  In  tlie  Ar;:n- 
inent  on  Itelialf  of  (ireat  Britain  eould  possihly  <>-i\e 
sueli  lar;r«'  resnits  or  lie  more  satisfactory  to  the 
claimants. 

A  carefnl  examination  of  th«-  items  for"  Kstimated 
lialance  of  ( 'atch,"  a|)|iearin;^'  in  tlie  schednle  attached 
to  the  consideration  of  the  separate  claims  in  the 
Mritish  Ar;innn'nt,  testing;-  each  l»y  the  fornuila  su;^- 
••■ested.  fails  to  disclose  how  the  innnlters  claimeil 
were  reached.  For  example,  the  claim  for  the  .liiiin 
llril,-  is  ."{.(Miit  skins,  while  cah-idated  as  propo.sed  the 
"proltaitle  catch"  would  have  l»een  4,OS2 ;  the  .1////- 
iiir's  claim  is  .'{,5<l'>,  according'  to  the  fornnda,  4,21>N; 
the  Triiniiiih  (ISSit),  ,H,:»(I(»  claimed.  '»,S;V2  «-omputed  : 
and  the  .Irhl,  2,<>S()  claimed,  ;{.4;WI  calculated. 
In    the    majoritv   of    cases   these    skins    claimed    as 


an    estimat«-d    cat«-li 


are 


ess 


tl 


lan    won 


Id    I 


lave 


// 


resulted  from  an  application  of  the  ".l/w///  AV/r 
method,"  while  in  a  tew  instain-es  the  claims  exceed 
the  calculated  catch.  The  arbitrary  chan^i'e  of  the 
ti^nres  residtin<:'  from  an  application  of  the  method 
of  calctdation  proposed  shows  that  it  could  not  have 
heen  deemed  satisfactory  or  equitaitle  even  when 
su;>'''esteil. 

luunediatidv  preceding,  that  portion  of  tin-  Ar;iii- 
ment  in  which  the  modi  of  cal«-ulatin<>'  "prohahle 
profits,"  Itased  on  the  catch  of  the  Marif  I'JUiti,  is  ex- 
plained and  advocatetl,  ther  •  apju-ar  five  tallies.  <:iv- 
iny  what  purports  to  l»e  a  summary  of  the  evidence 
in  re;iard  to  the  vessels  sealin,"'  in  H«'rinj>-  Sea  in  the 
seasons  from  1SS(J  to  IS'.IO,  inclusive. 


I 


n  view  o 


f  tl 


le  in 


ethod 


su<i<rested   in  the  opposin;^' 
Arjiument,  the  oi)ject  of  this  table    is   not   apparent. 


EHTIMATEU   CATCH    l)I8Cf8SKU. 


256 


It  f«'rtiunlv  niii  not  Itc  pivsciitol  tor  tin-  piiriHtsf  of  "r- Ary.,  w, 
yivni;;  the  (  oiimiissioiuTs  otlicr  uiitn   upon  wliicli  to 


lijis*'  ill)  cstiiiiiit*'  tor 


in. 


ill)  <'stiiiiiit«-  tor  "nrohahic  i-iit<-li,  iior  is  it  ;mi- 
ti«-i|ititc<l  tliiit,  liiiviii^r  iMlvo«-titc(l  ii  niftlioil  iiiiil  iiisistftl 
tliHt  it  is  t'jiir  mill  just,  (Jrciit  liritiiin  would  sii^ryi'st 
■■inotlicr  sriiciiic  ot'  i'oiii|iittiitioii  iit'ttT  tins  iir<>'iinM-nt 
liiitl  Ik'i'II  (U'livcrcfi  uimI  wlicii  tli«'  I'liittMl  Stiiti-s  liiul 
no  o|)|)ortunity  t'>  rciily  to  siirli  new  itropositioii  jiikI 
lU'W  l»!isfs  tor  tilt'  Dilniliitioii  ot'  si  "su|>|iosc(|  «'atrli." 

It  is  l)t'li('v«Ml  l»y  tilt'  rnitt'il  Stntt's  tluit  ( trtiit  Mritiiiu 
prt'st'iitt'tl  tt>  this  lli;r||  ('i)iiiiiiission  wliat  was  ilt'fiiit'il 
tilt*  most  pliiusililt'  int'tlitiil  to  lit' iitloptfil  on  tlif  i'iit-ts, 
iiiitl  tilt'  out'  wliifli  tlit'V  foiisidtTt'il  to  lit'  nii)st  t'lisv 
tit'  iiiiitlii'iiiatifiil  tlt'iiioiistratioii. 

Attt'iition  is  fallt'tl  ti>  tlif  t'aft  tliat  at  tlit-  titiif  wlu-ii 
( Jrt'at  Britain  otit-rt'il  t'vidciift'  as  to  tlu'  t-atfli  tor  tlie 
yt'ar  IS'.M),  it  was  strt'iniously  olijt'fti'tl  tt»  t»n  tlif  part 
of  tilt'  I'liitt'd  Statt's  as  lit'iiiji-  rt'iniitf  to  tlif  ipifstions 
at  issuf;  and  at  tlif  sanif  tiiiif  it  slioiilil  lif  iiotfd  that 
from  tlif  tirst  thf  rnitfil  Statfs  liavts  insistftl  that  all '"'• 
tfstimoiiy  otffi'fd  ftir  thf  piirptisf  of  fouiuliii}:-  a  hasis 
for  thf  fttmputation  i»f  a  "proliahlf  t-atfli  "  was  irrt'l- 
f vaiit,  anti  oiifrht  in»t  to  lif  fiitfrftl  upon  l»y  thf  ( 'oiii- 
missioiifrs,  on  thf  ;^'i'oiintl  that  fiitni'f  protits  t-oiild  not 
lif  rt't'ovfi-fil  hy  thf  flaimaiits. 

Thf  ptn'tioii  t>f  tlio  K'ffonl  rt'latin<iti»  thf  atlmission 
of  tfstimoiiy  ill  rt'<;iir<l  to  thf  Mfrinji'  Sea  t-att-h  for 
thf  yt'ar  IS'.Kl,  wliifli  was  Diii/iiKilli/  i>rfSfiitfd  l»y 
(Jrfat  Ih'itaiii,  ami  is  now  appart'iitly  ahandoiifil.  is 
as  follinvs: 

Thf  sfiiiorCtunisfl  on  lifhalf  of  thf  rnitt-d  Statt-s:  "-,'--•  ""« 

There  is  no  ])r)ibable  t'att;!i  ciaiiiietl  for  ISiMI.  anil  we  mib- 
iiiit  that  it  is  remote,  ami  the  .same  rule  woultl  t-over  as  was 
in  tlie  minds  of  yonr  iioiiors  wlien  you  exclntled  any  exuini- 
nationof  Mr.  Alexantler,  tlie  I'nitetl  States  Fishery  Comiuis 
sion  agent,  by  us,  as  to  tlie  t-atches  of  1804  aiitl  lSi)/3.  Of 
course,  if  there  was  a  probable  cateh  clainietl  for  189()  there 
woultl  be  nt>  t|UCstioii  about  it  under  your  honors'  ruling;  tt> 
take  the  te.stiiiiony  as  to  probable  eatches,  reserving  the 
(piestioii  for  future  argument.    There  is  no  iiuestion  here  as 


p;' 


266  K.STIMATKK   CATCH    DISCUHSEU. 

to  tlie  raMt'H  III'  Hei/iin-s  in  IHS4I,  wIump  tlit-y  eliiimed  llip 
lirottiihlc  ciitili  for  ISH",  or  tin'  Ht'lziircw  lor  1«M7,  wlitTf  tln»y 
clainuMl  the  proliabli'  ciitrli  lor  IHH^ 

'I'lic  ('numiissidiicr  on  tlit-  |iiirt  nf  llcr  Miijcstv  : 

I  do  not  r«>nuMnlM*i'  wliiit  wim  iiiIimI  hvloio,  but  it  hi'I'mik 
to  inc  tliikt  tin*  ciitcli  lor  any  ruaHonalik^  year,  t^Hpt'ciiilly  al'lt'i 
tin-  tinif  in  r«'s|H'<-t  to  wliicli  tln>  claim  is  made,  would  liavf  a 
lifarinj;,  h«'canNe  prfNiimMldy  tim  seals  are  not  apprecinbly 
Kieater.  Tliei'd'ore,  at  ail  events,  within  a  limited  number  of 
years  tliey  may  be  considered  to  be  about  the  same  in  nnm 
ber,  and  the  eateli  in  any  year  to  be  reasonably  elime — not 
get  tint;  too  remote  I'rom  the  dato  in  queHtiiui — would  seem  to 
me  to  have  a  '  ery  obviouH  bearing  upon  the  probable  eateh 
for  the  year  in  <|uestion.  If  we  have  ruled  (uit  evidence  of 
this  kiinl  in  IH!tl,  the  proper  <'ourse  would  be  to  allow  that 
evidentre  to  lie  ^'iven,  if  it  is  considered  that  1M>4  is  not  too 
remote. 

Tlu'  ( 'oiiiiiiissioinT  oil  tlu'  part  td"  tin-  I'liitcMl  Stiitcs: 

It  was  ruled  out  after  very  careful  eonsideration. 

'I'lic  ('iiiiiinissiuiu'r  Mil  tlu'  piirt  of  llcr  Miijcsty: 

The  evidence  ini|;;ht  not  be  admissible  in  18))4,  Itecause  at 
that  time  the  mode  of  sealing  was  changed  after  the  regula 
tioim  (tame  in  force,  and,  of  eouiHe,  with  a  chnnged  mode  of 
sealing  the  «;ircuinstance8  would  not  be  the  same  and  the 
evidence  would  not  be  applicable;  but  it  wiuild  be  otherwise 
where  the  mode  of  fishing  is  the  same. 

It  would  scciii  tVoiii  tlic  tiict  tliat  (ircat  liritaiii 
liaviiio'  oU'crcd  so  iiiiicli  tt'stiiiioiiy  in  rc^iunl  to  I  Slid, 
iiiul  all  flic  oflu-r  years  troin  18S(i  ii|i  to  that  time, 
there  was  prciiicdifatcd  tliiriii;i'  the  early  sessions  ot 
the  (!oiiiiiiissioii  at  X'ictoria  a  plaii  to  reach  approxi- 
mate ci-rtainty  l>y  inciins  <d"  ap|>lyiii<>-  tin*  <i«  iieial 
avcra<ic  of  a  lar;^*'  amount  of  data  in  relation  to 
catches  of  other  vessels  for  those  five  years;  hut  that, 
in  «>\aminatioii  of  the  testimony,  it  was  found  that  in 
a  larjic  numher  of  cases  the  evidence  was  incomplete, 
and  in  a  still  lar}>'er  nmnher  was  uncertain,  throuo'h 
immerous  contradictions  in  the  testimony  <»f  different 
witiH'sses.  This  p-ound  f(»r  the  conclusion  apparently 
reached  l)v  (ireat  Britain  is  reasonahle,  and,  as  the 


KBTIMATEU    lATCII    liIH(  IISSKIJ. 


967 


I'liitfd  Stiif«'s  cniii-fivf,  fully  iiistiti«-t|  in  iin  «>\iiiiiiiiii- 
tioii  iif  the  lit'ninl. 

I'i-i>l)iil)ility,  iVniii  tlic  tiiiif  tlijit  it  lins  Ixm-ii  trcntcil 
as  ii  In'iinrli  <it'  iiiiitlicinatirs,  has  al\va\  s,  in  i|i><lu('iii^' 
a  Jiifnrr  t  nut  frmii  known  juist  in iits,  dt-alt  with  tliu 
<|ii«-stinn  III"  <,''»Mi«'ral  avcni<«t'.  Without  general  avcr- 
a;;«',  m-oltaliilitv  is  mere  rhan<  * .  It  is,  thcrctoi-c, 
contiufntly  itclifvcd  that  th«'  lli;>'h  ( 'oMnMissionci's>''»vy'' '''''^■> 
will  not  atlopt  any  nii'thoil  ot'  roniputation  whit-h  p.'Viix.  ' 
(txchi<l('s  an  avcnijic  rcsiiltin<i-  in  aitproNiniatc  ct-r- 
tainty.  That  a  rt-lialtlc  ;f«'nfral  avcrajic  ran  he 
rcacluMi  from  the  »'\  i»h'nrt'  is  ih'uicd,  anil  it  is  asserted 
that,  even  if  there  were  a  le;;al  hasis,  which  tlie  I'nited 
States  insist  there  is  not,  for  the  adoption  of  methods 
oni|)Ioyed  l>y  matheniatieians,  there  is  Iteforethe  llijih 
Conunission  no  ailo<iuate  data  for  the  a|)|)lieHtion  of 
the  rules  whieh  relate  to  the  science  of  probabilities. 
B  M .'{3 


wiL' 


i*  i 


THE  VALUB  OF  SEAL  SKINS. 


Tlio«Mlori'  LiiIiIm',  a  |)iirfli)isci-  of  soil  nkiiis  in  tlio 
city  of  Victoriii  since  tlic  vein-  1H7'),  wns  tlic  milv 
(■nin|)ct«'nt  iind  cNpcricnccil  witness  ciilN-d  on  hclmlt' 
of  citlicr  pnrty  to  tliis  controversy  wlio  ;>!ive  jieneial 
K.^iWl,  'i'i'f,.„ti,,„„,y  ,,f  fl„.  vjilne  of  seal  skins  in  tlie  market  of 
Victoria  in  tlie  years  when  tlie  seiznres  Ityflie  United 
States  were  made. 

.\ir.  Lnldte  testitii'd  tliat  tlie  Alaska  (.onnnercial 
Company,  of  San  Francisco,  at  tliat  time  lessees  from 
tlie  (Jovernment  of  tlie  I'liited  States  of  tlie  I'lJUof 
Islands  (]{..  lss;{,  line  2;$),  H«'ssen;>»'r  i\c  ( 'o.  (I{.,  Is'm, 
line  (l"t),  Tlie  ilndson  Hay  Company  (If.,  IK'.M,  line 
(iO),  I,iel»esi\:  Co, of  San  l-'rancisco  (H.,  lO.'M,  line2;{), 
I.  iV:  A.  hoscowitz  (|{.,  l!l.'{-_»,  line  •_'!)  and  liiinself. 
representiii|i'  .Martin  Hates,  dr.,  tt  Co.,  of  New  York, 
were  piirdiast-rs  of  seal  skins  in  the  market  of  Victo- 
ria ill  the  Near  1SH6;  that  .1.  riilnian  it  ( 'o.,  of  New 
York  {l{.,  IS.SS,  line  2!l).  Lieltes  &.  Co..  of  San  Fran- 
cisco (|{.,  l.Ss;{,  line  <{.")),  the  lliid.son  Hav  ( 'ompanv 
(|{..  1.s«;;,  line  ;{(;),  d.  Hoscowitz  ( l{.,  l-SIM),  line  .•;."»■), 
and  liinis(df,  representin<;-  .Martin  Hates,  dr..  it  ( 'o., 
wi-re  pnrcha.sers  of  seal  skins  in  the  market  of  \'ictoria 
in  I.SST;  that  Walter  Horns,  dosepli  riilman,  of  New 
York,  II.  Liehes  iM:  Co.,  of  San  Francisco,  himselt", 
represeiitiii;iMartiii  Hates.,Ir..i\c  Co-.The  lliid.son  Hav 
K.,  IHsl,  liMe( ',„,,. ,.,,,^.  .,,,,1  I  ^\^  \  HoscowitZ  Were  purchasers  in 
the  market  of    \  ictoria  in   ISSIt. 

Ill  the  Near  lS8f!  nil  skins  tak«'n  in  Herinji'  Sea 
and  on  the  coast  Ity  .seal  hnnters  from  the  port  of 
258 


TIIK    VALIi;    OF    HEAI.    sKINH. 


259 


Viet 


nriii 


wen-  s(iM  ill  tlif  iiiiirk«-t.H  ul'  N'ictnrin  nr  Siiii 


nninMrn 


'I'l 


wrv  IS  nil  «'Viilciii-<-  III 


tlic  I 


any  wiles  in  thiit  \  fiir  clscw  here 


n 


iciMlnrr 


hiiMi 


M-  iinirniiscM  III  tlijit  vt-iii'  ii 


ict'un 


t  Virt< 


I   of 


inn 


16,7!*7  skins,  il.  Lifltcs  iV:  Co.,  nf  Siiii  I'ViiiiciscM, 
imn-litisfil  on  tin-  const  in  ISsn,  T.'iOiJ  skins,  jiihI  tin- 
Aliiskii  ( 'oiiiniri'fiiil  ( 'iiiii|iiiny  lMiii;;lit  i\  liir;i'<-  iiiiiintity 


K..  IKX-J,  llii« 

ri4i, 


>\'  skins  in  N'irtonn  tlint  vciir.     'I'lic  witness.  'rlietn|ni» 


l.iilil 


»e.  WHS  tlie  imcnt  for  tlie  sale  of  tile  Mm//  i'.lli  ii'. 


.skins  ill  tlie  year  iSSd:   in  t'iict,  as  lie  stated.  '•!  uwiieil  "jx''".  I'ue 
in  lier."  ami  sold  tlie  skins  to  p  >    Alaska  ( 'oiiiineirial 
( 'oiii|iaiiy's    re|ires«Mitati>e>  at    \  ietoiiji    tor  >«(;,5o   n 


skill. 

In  tliat  year  !{essiii;;'<i  i\c  ('<•.  were  |i.i,iii;''  iVmii 
><(i.,'iO  tti  !^7  per  skin,      l.ioln'  testilie'': 

if.  .Mr.  liUhlie.  tlu'io  were  punlr.ise.s  of  the  lU-riiii;  Sea 
eatcli  here  in  Vietoriu  in  IH.SO* 
A.  Yes,  sir. 

ii.  Can  you  tel'  ine  wliat  tlicy  wi-ie  Hohl  loit 
A.  Tlie  highest  1  know  was  |7  and  the  hiwest  't^VM, 

The  market  value  ot'  .seal  skins  in  tlie  market  <it' 
Vietoria  in  tlie  year  iSSd  is  tlieretore  flelinitely  lixed 
as  Itetweeii  s^d.'iO  and  >«7.  Tlie  rlainiaiits  demand  tlie 
lii;;liest  priee.  Tliey  should  Im'  alloweii  the  averajie 
market  price. 

In  the  vear  1SS7  there  were  no  skins  sold  directly 


I.'..  ls!i;i,  line 

Hi. 


>V  owners  o 


f  sealin 


"•  vessels  in  aiiv  other  mar 


th 


iket  tl 


lan 


in  tlio  markets  of  VMctoria  aial   San   Fraiwisco.      In 

that    vear    Liel>es   &.   Co.    purchased    17, !•;'»(;    skins.  K.  i9<k» 

--.•-.  .  .1  .  .    .     .  '    .  .  .         M      lll'J9 


M'\%  1        •  !•'      ..1        I  •    I         !•         •      »i      I'l  11KI2,  line 

orris  A10.SS  was  l)uyin;>-  tor  the   hiehes  nriii  in  the    js. 

market  of  San  Francis<'o  that  year. 

A  total  cati'li  of  10,200  in  llcriii!/  S)(i  was  all  pur- 
chased in  Victoria  l»y  riilman,  IJeln's  it  Co.,  Hudson  'f-.  18«3.  liuo 
Hay  Company,  and  Liiblie. 

The  only  witness  sworn  as  to  the  mar 
skins  in 


1; 


ket  vahie  of 


the  city  of  Victoria   in   tliv;  year  1H87 


was 


Theodore  liubbe,  who  testified  that  he  purchased  from  K.,  18sl',  lin« 
Charles  Spriiiff  &  Co.,  on  the  lOtli  day  of  October,    "• 


260 


THK    VALUE   OF   SEAL   SKINS. 


1 


R..  1882, 
33. 


Brit.Arg. 
liue  13. 


85, 


R..  1883, 
30. 


liuo 


Brit.  Arg. 
line  L'. 


}{.,  1SK3, 
32. 


I{..  1883. 
34. 

K..  1884, 
4. 


!{.,  18«l, 
13. 


18S7,  l,()2.")  sciil  skins,  at  84.50  each,  au<l  tlie  witness 
acMctl: 

line  po|.  instance,  in  the  Bering  Sea  tlie  Hchooner  Kate  did  not 
contain  any  gray  pups  to  spealv  of;  site  may  have  contained  a 
tew,  but  in  tlie  others  the  pups  are  included. 

Ill  tlie  Arjfuinenton  helialfof  (rivat  Hritaiii,  (Jliarles 
Spring-  is  cited  as  liavinj«-  sold  his  skins  that  year  tor 
87.  If  Charles  Sprinjj-  sold  any  skins  that  year  at  ^7, 
it  was  much  earlier  in  the  year  than  the  cargo  of  skins 
from  any  of  the  vessels  seized  would  have  been  landed 
in  N'ictoria.  The  fact  is,  accordinjf  to  the  hooks  of 
Mr.  Luhlte,  that  he  received  >^l..")(>  for  each  seal  skin 
of  the  licnnfi  Sea  ((itcli  of  his  schooner  h'lil)'  in  that 
year. 

Uhhnan  &  Co.,  ot  New  \  ork,  lioujjht  ot  Munsie 
the  2,377  seal  .skins  taken  by  the  l'tithliu((vi\  at  >*6 
per  skin. 
,85,  'W^,  statement  is  made  in  the  .Vrjiument  tin  behalf 
of  (Jreat  Britain  that  the  skins  sold  by  Munsie  to 
Uhhnan  were  less  valuable  because  of  the  number  of 
jiTay  pups  <'ontained  in  the  lot. 

liiibbe  testifi«'d: 

Amongst  these  l.',3""  th»'ie  may  liave  been  10  or  15  gray 
paps,  wliich  would  change  my  figures  slightly,  but  would 
not  amount  to  anything. 

Lubbc  bought  the  I'dit'lofif's  collection  of  1,'»(I0 
skins  at  ><.">."»0.  This  same  year,  1S,S7,  Lul)be  states 
that  skins  were  sold  at  the  following  prices  in  \'i«'to- 
ria:  Other  skins  from  the  I'dflifiiiilit;  N^.fiO;  from  the 
I'i'iirliijii'  and  rill  rcxii,  ^."). "_*.">. 

I  think  they  are  subject  to  a   very  slight  increase  on 
account  of  a  lew  gray  paps.     It  would  not  amount  to  any 
more  than  •*'>  ce  .ts  ])cr  skin, 
linn     {.).  \\»\  all  these  skins  were  llcringSca  skins,  or  northern 
coast '. 

\.  Yes,  sir:  Herlng  Sea  skins. 

(i».  Could  yon  give  us  the  diit«'  of  that  last  ptnchas*'? 

A.  October  11,  l.SST. 


line 


liiii' 


line 


THE    VALUE   OF   SEAL   SKINS. 


261 


Mr.  Lul»i>e  testified  that  in  1SS7  ho  miKU;  tliisR  j^»'32,  Hue 
ineintnandum  in  his  hook:  "lllihuiin  appesued  to 
have  eiiou«>h.  Davis  (ridman's  af-eiit)  (roiild  have 
l)oii<>ht  a  htt  at  8")."  Kxaiiiiiie«l  as  to  the  avera<>e 
market  |»nce  t»f  skins  in  1SS7  in  tlie  city  of  Victoria, 
Mr.  Iinl>he  said: 

Q.  Ill  1887  would  *r>.50  be  a  good  I'liir  average?  |{.,  i!»33,  huo 

A.  I  should  think  so:  yes,  sir.  :«». 

Q.  F<.r  all  f 

A.  Yes,  sir;  tor  all. 

This  means  lierinjj-  Sen  skins. 

(Japtain  Warren,  examined  as  to  the  market  price 
of  skins  in  the  yeju-  1SS7  at  Victoria,  said: 

i}.  What  was  tiie  ruling  market  price  of  skins  in  Victoria  H.,  is7l',  line 
in  the  year  1S,H7  in  the  fall!  H- 

A.  Well,  as  near  as  1  can  remember,  it  was  about  •'5'r>.50, 
what  the  buyers  were  paying  here. 

This  testimony  conchisively  estahHslies  that  the 
market  price  of  fur  .seal  skins  in  the  city  of  Victoria  in 
tile  fall  of  1SS7  was  s'».")(>.  Tlu'r*'  isiio  other  testi- 
mony in  the  iJeconl  heariii";'  n|»on  the  averajjc  market 
price  of  seal  skins  at  Victoria  in  that  vear. 

.VHidavits   orijiinally   tiled    hy   the   claimants    iuiil '*' ''"*"■ 
found  in  the  Uritish  case  prest'iited  to  the  Tril)unal  of 
Arhitnition  at  Paris  were  read  into  the  Reconl. 

The  affidavit  of  ('apt.  .Fames  I).  Warren,  prejiiiied 
in  connection  with  flie  claims  of  the  hii//iliiii,t]\v  (inirr, 
the  Saifinini,  and  the  Ainiii  Itirh,  claimed  for  each  seal 
skin  seized  So.fjO,  the  imirket  value  at  N'ictoria  in  the  •*:,'•'"'•  "'"' 
year  1SS7. 

The  affidavit  filed  in  connecnon  with  the  claim  of 
the  Add,  which  Wiis  made  on  the  Utii  dav  of  Deceiii- 
her,  1SS7,  claimetl  for  tiie  seid   skins  seized  hv  the  u.,  iikh,  line 
cutter  >i.").r»0  per  skin,  the  luarket  \alue  of  seal  skins 
in  N'ictoria  in  18S7. 

The  value  of  seal  skins  in  the  yefU'  I8SS  is  not 
directly  involveil,  and  the  testinionv  is  not  important. 


!;-;■ 


i:i. 


II 

"4 


m 


ill    ::l 


2fi2  TIIK    VAUJK   OK    SKAL   SKINS. 

Tilt'  rlaiin  is  iiiiKlc  tor  >»11  for  I'acli  skin  seized  in 
the  y«'iir  1889. 

Mr.  LiiltlK-  tcstifiiMl: 

R.,  1K)6,  line     Q,  You  liav«'  been  asked  to  say  whether  a  certain  sum 
^''-  wouM  lie  a  fair  average  of  the  northwest  coast  catch  as 

T.anipson  chissitied  them  in  1889,  and  you  also  say  that  that 

is  not  a  fair  way  to  net  an  average  price  for  Berinj;  Sea  skins. 

Can  yoii  i/ire  us  the  nrerniir  ftrivv  for  livrituj  St'ii  xkinHjhr  the 

yiiir  1>S').' 

A.  Vou  mean  a  sum  in  London  and  heref 

(}.  Take  it  hotli  ways,  if  you  csai,  or  if  you  can  not,  give  us 

eitlier  one  way  or  tlie  otiier. 

A.   The  price  here  inix  s;.7.')  mid  s^jio  in  Iss!).     The  price  in 

IjinuloH,  I  xhuuld  think,  inmltl  raiifii  lietireeii  SH.iO  ami  S!>.'>(>; 

the  net  rexiiltx  to  xhippers  ej'piirtiiiij  skins  would  lie  between 

su.llt  and  s:>..',i),  the  iirerat/e  regnlts. 

K._,^i9:ts.  lii...      M,.  |^„l,l„.  jitterwanls  state<l  that  lie  iiiiule  a  sale  in 
London  ill  lSS!i  at  !^7.7(i  Iter  skin,      lie  aj;ain  testitied 
'*,j4/*"'^''"^eoneeriiinj;'  the  market  price  in  Vietoria  in  188!t: 

<^  Taking  them  as  they  ran  ? 

A.  Vou  <'a!i  not  do  tliat.  If  you  take  75  per  cent  Bering 
Sea  and  2.">  jter  cent  coast  catcli,  the  average  wouhl  be  more 
tlian  ^l.M. 

Q.  IJut  as  tliey  ran  in  ISHO,  from  your  knowledge  of  the 
market.  *7.L'((  would  be  a  fair  average,  would  itf 

A.  Yes;  1  should  tliink  so. 

Inasinneh  as  manv  skins  seized  t'ntin  the  seho»»ners 
in  l8Si(  were  ot"  the  eoa.st  eatcli,  this  averaj^e  price  of 
>^7.2n  per  skin  in  Victoria  wmdd  seem  to  be  a  fair 
vahie  for  the  skins  taken  from  the  .schooners.  The 
lii<;liest  market  price  of  .skins  in  N'ietoria  in  1889  was 
between  !^7.7r)  and  !^7.60. 

There  is  no  testimony  in  the  Hecord  opposed  to  this, 
and  in  tln'  Arjiiinient  on  behalf  of  Great  Hritain  the 

J''^*'4''t-''l'- price  of  skins  is  dismissed  with  one  statement  that 
Munsie  says  that  he  sold  some  in  London  for  8 11.0(t'"{. 

R.,  1863,  line      Mimsie  testified  as  to  sales  made  in   London  in  the 
vear  1881».     lie  .sold  some  at  87.112.     He  .sold  other 

^•^0.*"^' ''""skins  in  188;t  at  >i8.1(».-|.     The  date  of  that  sale  was 
•  October  ;{(•.  188!i.     He  testilied  that  he  .s(»ld  (»ne  h>t 
for  8ll.(Mi'|. 


I  . 


THE    VALUE   OF   SKAL   SKINS. 


263 


TIio  claiiiiimts,  iti  the  oHfriiml  iiftidnvits  contjiincd" -,  ^'JOO;  •{•- 
in  tht'   British  case  tih'd  at  I'aris,  and  whirli  were    "*' 
read  into  the  Kecord,  all  ilainied  tlie  market  vahie  at 
Victoria. 

Charles  Spriiij-',  in  his  attidavit  made  in  1S8'J,  inu.  ukx),  line 
connection  with  the  claim  of  the  Kute,  said:  "'" 

The  market  value  of  seal  skins  at  Victoria  aforesaid,  at  or 
about  tlie  time  the  Kute  arrived  from  said  voyage  and  since 
that  time,  was,  and  now  is,  $8  per  skin. 

Samuel  Hncknam,  in  the  attidavit  maile  in  connec- 
tion with  the  claim  of  the  AtitI  and  sworn  to  in 
Xo\end)er,  lS8i),  .said: 

The  .selliiifj  i»rice  of  seal  skins  at  said  \ictoria  on  the  said  !>'■.  iiH)(),  line 
arrival  of  the  Arid  and  on  tiie  Ist  October,  about  which    ^"■ 
time  sealinfj  vessels  usually  arrive  at  Victoria  from  a  fall 
sea.son's  voyage,  was  .*,S  i)er  skin. 

'I'lie  artidavits  of  all  the  other  claimants  contained 
a  reterence  to  the  iimil.cf  raho'  <if  VntDiin. 

The  claim  is  made  for  the  market  price  at  London, 
in  the  Argument  on  liehalf  of  (Jreat  Britain.  There "ot-  .\i!i., 
is  no  testimony  of  the  iiitirhit  value  of  skins  in  Lon-  •'•'«'' **^ 
don  in  the  years  ISSfi  or  ISST.  There  is  no  evidence 
(»f  any  direct  shipment  l»y  .scalers  to  I..ondon  in  the 
year  1SS7.  The  statement  is  made  that  Captain 
Warren  shi|)ped  skins  to  London  in  1SS7.  'Hie  fact 
is  that  .1.  Moscowitz,  who  was  and  had  Iteen  for  a 
iiTeat  many  years  a  purchaser  of  seal  skins  in  \ic- 
toria,  sent  his  skins  to  London,  where  the\  were  sold 
at  the  auction  sales  for  his  account. 

This  shipment  was  not  inadi'  lt\  Captain  Warren,  K-ji'i'-'ts  p. 
and  the  papers  introduced  in  exidciice  on  tlu'ir  face  '''"' 
show  the  shipnu'Ut  was  made  i»y  .htseph  Moscowitz. 
'i'he  oidy  oilier  testimony  in  the  U'ecord  of  any  ship- 
ment ever  made  to  London  was  iiiveii  li\  Hall.  wli(» 
smted  that  lie  made  one  shipment  to  London  in  l.s.SS, 
hut  <iave  no  account  of  the  sale,  and  the  testiiiioiix  of 
Mnnsie. 


'I- 

n. 


U«l.| 


11 


2G4 


THE   VALUK   OF   8KA1,    SKJX8. 


f 


Lul»l)»'  says  tlu'  iiiiirk(>t  price  in  LoikIoii  in  ISSil 
was  s«|.4f)  t,;  sM.fto  net  at  N'ictoria. 

'I'hi'  I'nitcfl  States  eoiitend,  as  stateil  in  anollier 
part  ot"  this  Arjiiiineiit,  that  the  price  of  tlie  seal  skins 
seized  is  lixetl  l>v  the  market  ]»rice  riiMnii'  in  the  city 
(•f  Victoria  at  the  time  that  the  vessels  woiihl  have 
ih'hverecl  tlieir  skins  there  tor  sah'.  No  rnh'  of  hiw 
is  more  firmly  estahlished  than  that  which  declares 
tiiat  in  case  of  a  loss  of  car"'o  hefore  a  vo\aue  at  soa 
is  completed  the  value  of  the  car<><t  is  determined  l»v 
the  market  value  rulinji'  at  the  port  of  departure. 

Not  only  wen'  no  contracts  put  in  «'vidence,  hut 
no  evidence  was  offered  that  any  of  these  claimants, 
with  two  exceptions,  rrcii  nitiinlrd  to  sell  their  skins 
on  the  l^ondon  market.  That  there  was  a  market  at 
Victoria  for  the  sale  of  skins  is  abundantly  estab- 
lished, and  that  the  claimants  would  have  .*<old  their 
skins  in  the  port  of  Victoria  is  beyond  (piestion.  In 
any  event,  had  tliey  testified  that  they  intended  to 
sell  in  London,  the  market  valuo  rulinji'  in  London 
could  not  control.  That  would  be  allowiny  flamajfes 
based  U])on  speculation,  and  no  such  rule  of  law  has 
ever  been  established  by  any  coiu't. 

'I'he  Ihiitcfl  States  claim  that  the  value  to  bo 
awarde<l  for  seal  skins  seized  in  the  varions  years  is 
as  follows:  in  l.S8(!,  between  86.50  and  87";  1S87, 
85.50;   IHStt,  87.20  to  87.75. 


H 


EVIDENCB  RELATINO  TO  VALUE  OF  VESSELS. 

Tlu'  cvidt'iicc  i»r('st'nU'(l  to  the  ("oniiiiissioiu'rs  for 
tlio  purpose  of  ('stal)Iisliinji-  the  Viihic  <»f  tlic  vessels 
seized  hy  the  I'liited  States,  mikI  which  became  total 
hisses  t(t  their  owners,  may  he  (nvi(hMl  into  three 
iieads: 

First,  actual  sales  which  took  place  at  the  time  of 
the  seizures. 

Second,  the  o]»iuions  of  witnesses,  competent  from 
occupation  and  exjierieiice  as  experts  upon  tlie  market 
value  of  vessels  at  that  period,  as  to  the  value  of  the 
vessels  seized. 

Third,  the  cost  of  l)uildinj>'  vessels  of  a  class  similar 
to  those,  for  which  claims  are  presentt'd,  at  the  time  of 
the  seizures. 

In  discussin;^'  the  method  of  reachin<>'  a  proper 
valuation,  counsel  on  Itehalf  of  <^}reat  Mritain  said: 

I  propose  tosliow  tliat  there  are  ten  or  lifteeii  vessels,  and 
that  tliosf  vessels  atrtnally  cost  so  ninch  to  bnihl.  I  projiose 
to  show  that  by  the  very  besl  eviden(x\ 

The  ('(nnmissioner  on  hehalf  of  the  I'nited  States 
su^i'^ested  that  actual  sales  of  similar  v<'ssels  at  that 
time  would  j^ive  some  idea  of  the  market.  To  this 
the  reply  was  made: 

/  ain  iioiiii)  to  itrurv  flie  ncfiial  sales  and  the  avtuat  cost  ()/'i(.,i20, 
80HU'  rrsscls. 

Aoain  he  said: 

How  can  I  show  better  the  value  than  by  giving  evidence  ^   io3_ 
as  wliat  vessels  were  sold  lor  at  that  thnc. ' 

In  view  of  those  statenuMits  of  couuscd,  we  would 
anticipate  that,  under  the  first  (dass  of  evidence  suh- 

n  K. .'ii  2G5 


ij'i 


lil 


266  EVIDENCE — VALUE  OF  VESSELS. 

initt(Ml,(irt*at  Hritiiin  \v«niM  luivf  proved, or  atteniptiMl 
tojn'ovf.  ii  iiiiiu)KM-iit'  sjilf^s  iit  tlu'  port  of  Victuriji  i»t' 
vessels  siiitiil)le  lor  sefiliiij>-  •liiriii''-  tlie  period  from 
1.SS5  to  1S8H,  inclusive.  Hut  no  witnesses  were  pro- 
duci'd  on  beliidf  of  the  cliiiuiants  in  referenci'  to  such 
sales  except  in  tlie  case  i»f  tlie  seized  schooner  ('(iin- 
Iritd,  although  the  record  dis«doses  that  at  h'ast  ten 
vessels  chanjicd  hands  at  Victoria  durinf>-  tlu>se  years. 
As  these  sales  are  deemed  of  chief  importance  in 
determinin;''  the  prices  ridinji'  in  the  Victoria  market 
at  that  time,  it  ispropo.sed  here  to  submit  a  summary 
of  the  evidence  relatin;i'  thereto,  dassilieil  accordin;,'' 
to  the  years  in  wliich  the  transfers  ttM>k  place. 

lS8r>  OK  188(1. 

The  Alfrcil  Aihims  (GS.To  tons)  was  sold  at  \'ictoria 
to  Untman  it  Frank.  Hut  Krank,  who  was  a  wit- 
ness on  l)ehalf  of  (ireat  Hritain  l»efore  the  (Jonnnis- 
sioners,  was  not  (pU'stioned  as  to  tiiis  .sale. 

The  llliiil;  /)i(tiii(iiiil  {XlSil  tons)  was  sold  at  Victoria 
al)ouf  the  same  time,  and  was  purcha.sed  hy  the  same 
lirm,  l)ut  no  ipiestions  were  asked  the  witness  Krank 
concerninji'  this  sale. 

Henry  I'a.xton,  a  witness  for  (treat  Hritain,  and 
part  owner  of  the  vessel,  in  iSSti  .stated  iditlfr  ciiiss- 
I .nuiihniliiiii  that  (Jutman  l>ou;.>ht  oiie-liltli  of  hei'  in 
188r>  or  ISSC.  iind  that  witness  did  also,  and  that  he 
(I'axton)  paid  >^."i0(t  for  iiis  one-fifth.  In  Noveml»er, 
liiir  18S7,  he  soil!  his  Iiitei'est  to  (iiitman  for  the  same 
consideration. 

I. SSI). 


A  1  !■  X  11  II 

.McL." 
K.,412, 
lU. 


llcT 

:i  II , 
liiir 


,\  li'  xa  II 
M.I.v 
1(..IIJ. 


H.  .  I'm  I. 
10. 


K..  ITlil. 
I. 


.Icr 


lilK 


liiii 


The  Acfirr  (4<>  tons)  was  sold  at  N'ictoria  for  aliout 
Mri',!'!iii'.  ^3,S(I(),  to  "(Jutman  it  ( "o."  (i.  e..  (Jutman  it  Frank, 
|{..  ii7,iiii.;,s  (Jutman  was  sultseipiently  lost  upon  this  vessel). 

The  witness  Frank  ^ives  no  testimony  in  regard  to 

this  sale. 


KVIDEXfK — VAI.IK    OK    VKSSKLS. 


2fi7 


M  c  I, 

I>'.,l(llMii 


Tlic    Ftdiiitrili    {~!\l')[    tons)  wiis    triiiisfcncil    fur '^V.'^ ■""'''' 
S3,()U(»,  "just  MS  slic  ciimc  tVidii  sci." 

All  «'ii(l«'iivnr  wiis  iii;i(|«-  uit  the  |»:irt  of  ( Jrcjit  Uritiiiii 
to  coiitriHlict  tliis  tfstinioiiy  of  Mcl^ciiii,  iiiid  for  tliiit 
purpose  Theodore  I.iiMk'  wits  sworn  as  ii  witness  in 
ivliilion  to  the  tninsfers  of  this  vessel,  lint  his  exiiini- 
iiiition  <liseh)se(l  thiit  the  sides,  of  which  he  had 
knowh-d;i-e,  oecnrred  in  1SS3  and  in  1SS4,  and  to 
whieh  refereiiee  will  be  made  hereafter. 

'I'he  h'lifr  ((;0  tons)  was  transferred  at  N'ictoria  f, t '^ \V 'l^ )"",''' '' 
>il,S()0.      Charles  Spriiij.;',  a  elaiinaiit  Itefore  the  Com-     i.'.'.KKu'ille 


mission 


•17. 


iiid  a  party  to  the  sale,  was  not  (|iiestioiied  in 
his  direct  examinati<.ii  rejiiirdinii'  the  transfer,  hut  on 
iross-ixtiiniiKitiiiii    he  corroborated    the    statement  ofH..  xi 
Mel. 


•L'.   line 


ean. 


rjie  Mdiit  Elhii  (78-S()  toii.s)  was  .sold  at  N'ictoria  ";/"."'''; 
'le  rate  of  "somethinji-  h'ss  than   si,;-,u()."     Th 


at  tl 

sale  was  evH 


leiitl 


<■  .1'  am  I  iia- 


Imt 


V  a  matter  of  common  kiiowled 


ii'e 


I  ion. 


\i. 


IS1.>.  line    !l. 


no  witnesses  w<'re  p/odnced  by  (Jreat   Hritain  to.viexan.i 


establish  the  consideration  which  |»assed 

'I'lie    Marif   'I'lii/ldr  (;"»(>  tons)  was   sold  at   N'ictoria 
aiioiit  ISSfj,  and  .1.  1).  Warren,  the  au'eiit  of  Thoii 


I'  it  11  , 


M  .i  I. 

K'.,  lOlMiiir 

.\  le  X  a  uilti  r 


II.  c 


lilf*     .M«l, 


ooper,  the  lai';;'est  claimant,  on  iiDss-r.nnii'iiKitinii     l<-.n;t. im. 


■itates  that  he  purchased  the  ves.sel.  but  n 

is  produced  by  (ireat   IJritaiii  as  to  the  incidents  of    '^•'• 


lo  evMleuce  l!..  ii.->t!,  Um 


le  sale 


'V\\v  .hxtiiitii  (40   tons)  was   .sold  at  Victoria  about  ^^''i'!i  "'.''"■ 


Mcl,..iin, 


1S8(;.      .Mcl..eaii  stated  that  he  (lid  not  know  for  what     if.,ii'-M 
price  the  vessel  was  sold,  but  no  witness  was  produced 
on  behalf  of  (Ireat  Britain  to  dispntve  the  .statement 
nt   McLeaii  that  the  vessel  was  sold   or  one  to  testifv 


as 


to  tl 


le  cousidoration 


riie  'l/irrtsn  ((13  tolls)  was  .sold  at  N'ictoria.  but  no ■^'"'^ '""'*•' 


evidence  was  produced  on  the  part  of  (Jreat   Hritaiii     i.'.',ii:ri' 
conceniinji'  this  sah 


M  ('  I.ea  II, 


me 


\y 


(ittilirtr  (1(1   tons)  was  .soM   at  N'ictoria   bv 


John  .Sabistoii.  oiu'  of  the  witi 


lesses  sworn  on  be 


half 


If 


i'  nr 


»ii 


208  EVIDENCK — VALl'E    OF   VESSELS. 

<»t"  Cirt'iit   Itritiiiii  in  ivjfjird   t(»  the  valiit'  of  vcshcIs. 

u.  211   liti.'  '''*'  ♦"«■♦<''  fl'i'*  '*"'t'  \^'"*  elicited  tVoin  liiiii  under  r/v/.s.s- 

15.^  r.niiiiiiKifiiiH,  Imt  on  liis  redirect  examination  the  wit- 

51?       ' ' ' •I*''*'*  "■"•''  ""'  "">/'■'■'/  "■"<■  /"  '/"'  coiis'iibtutiuH,  hut  wliuf  it 

tost  liiiti  to  hiiilil  the  rrssft. 

besides  the  sah-s  whicli  took  phu'e  in  iHSo  and 
1886,  and  which  are  of  a  special  vahie  in  deterniininji 
the  market  ]>rice  of  vessels  at  Vict(»ria  at  the  time  of 
the  seizures,  the  evidence  disch>ses  the  foUowinjr 
transf«'rs,  which,  though  in  a  measure  ren)ote,  liave 
a  bt!arin<i'  upon  the  question  under  discussi(tn: 

18S2. 


^^m.^^''  "'"■  '''''^'  "'•  ^'-  Sai/iranf  (5!».7!>  tons)  was  one-lialf  sohl, 
about  the  time  she  was  humched,  by  AiKh'ew  Lain;;- 
to  .J.  1).  Warren.  Neither  of  the  parties  to  the  sah-, 
who  were  witnesses  before  the  Commission,  were 
questioned  as  to  tlie  im-idents  connected  with  it,  and 
the  only  source  <tf  information  as  to  the  consideration 

K.^  4t«»,  line  which  passed  is  Alexander  McLean,  who  states  that 
^-  the  one-half  was  transferred  for  s3,(K)0. 

1883. 


•  1, 


]{.,   701, 
'.'0. 


«.,  1721, 
37. 


K.,    701, 


Till'  Fnrimntv  (7!>.54  tons)  was  partly  sold  at  Vic- 
toria to  Alexander  McLean.  He  purchased  sixteen 
shares  in  the  vessel  for  ^1,337..')(>  (that  is,  at  the  rate 
of  N'),,'{5(>  for  the  vessel).     The  evidence  concernin;;' 

''»« this  sale  was  produced  by(Jreat  Hritain  for  the  purpose 
i>f  contradictin^i'  the  t«'.stimony  of  McLean,  to  which 
reference  has  been  made  above.  In  re^^ard  to  the 
consideration   for    the    sixteen    shares    purchased,    it 

liii«nnist  be  borne  in  iiiiml  that  this  was  "a  master's 
interest."  and  therefore  the  j»urchase  price  was  hi^iher 
than  the  usual  valuation  of  .shares  to  ordinarv  pur- 
chaser.s.  The  entire  vessel  was  a;>ain  sold  in  Decem- 
ber, 1SS4,  to  ('.  Hprin^i-  tV:  Co.,  for  84,.")0(). 


EVIDENCK — VALUE   OV    VESSELS. 


2(i9 


18S4. 

TIlC   /w»/e  (()(>   tons)  Wits    (ilU'-tllinl    sold.       For    tllc  Al<xa".ler 
!•  1    •    •  1         •  .•      1         ^ .  .McLean, 

i)nri»os('  ot    i'X]>liiiiiin(;  n    Viiluution   ol    tla-    (hurdiil    K..iiio, ime 
mtuji'lit    out    on    tin-    cross-cxiiiiiiiiiition  of    Cliarlt's    "*'■ 
Siirin<r,  till'  bill  of  smIc  to  ('.  Spriu";'  it  Co.  was  pro- 
(Uu-imI,  sho\viii«>-  that  the  consideration  was  ><2.8<>(l.      I'-.^x!"'.  l'"e 

Till'  Mouutn'ni  Cliicf  (20  tons)  was  sold  at  Victoria 
for  "soinethinj-'  li-ss  than  snilO,"  l.ut  (ireat    Britain '^V,';:';;;',!;;^ 
failed  to  imMluce  a  witness  to  "ive  the  facts  coiniected     i.'..i(«t.  line 
with  the  sale  or  to  ct»ntradict  the  testimony  of  Mi-Loan. 

The  Oiiirfiril  (3r»  t(»ns)  was  sold  to  ('.  Sprinji'  it  Co. 
for  S2,2()0.  This  testimony  was  hronjiht  ont  on  the 
n-oss-(\miii illation  of  Siiriny  above  referred  to.  "•...^'i.lu, !!°* 

HL 
1S8!I. 

The  Triumph  (!>7  ton.s)  was  sold  at  Victoria  to  ^fMr-^V,'.^!'^?,;'^,'' 
vin  and  Cox  by  E.  C.  Jiaker  for  s,s,oO(l  or  s;),()()o.    i{.,  iia.iine 
Cox  and  Hakor  were  l)oth  .sworn  as  witnesses  on  be-K.',' iiii.  line 
half  of   the    claimants,   but   neither  was  (piestioned    "■ 
on  direct  examination  in  rejj'ard  to  this  sale.     Mr. 
Baker  however,  on  n-oss-r.iviiiiiHifidii,  stated  that  the 
vessel  was  .sold  on  ( )ctol»er  11,  1S8:>,  for  n!),00(>,  "forK.  iim,  liue 
everythin<>-,  asshe  was  then  lyin<iin  the  harlmr."     The     '' 
Trimiipli  hatl  7   rejiular  huntinji'  l)oats  and  "_*  other 
boats  in  her  outfit.     The  cost  of  the  7  hnntinji-  boats  u    u:)2,  liue 
was  !^755.     She  tarried  at  least    Ifi  yuns  for  white     '**• 
lnuiter.s,  and  her  l)i!ls  tor  nrearms  and  annnunition     in. 
amounted  to  ^776.70.     She  had  returne<l  from  Her- 
injj-  Sea   in  .July,  and  therefore  presumably  had  re- 
maining: a  consideraltle  portion  of  her  provisions,  am- 
numition,  ant!  «>ther  su])plies  on  board  at  the  time  of 
the  sale. 

In  the  year  ISXC,  there  ajjpear  to  have  lieen  22 
vessels  actually  enjia^ed  in  sealinji',  fri»m  the  pt>rt  of 
Victoria.  Of  this  numl)er,  12  had  their  ports  of  orijiin 
on  the  I'acific  Coast  of  the  I'nited  States.  1  on  the 
Atlantic  Coast  of  the  I'nited  States,  1  in  Nova  Scotia, 


27(» 


KVIDKNCK — VAI.rK    oK   VKHSELS. 


jiiiil  s  ill  Hritisli  ('uliiiiihiii;  nf'  wliicli  hitter  iiuimIm  r 
^  I,  .,.  Init  l\  were  luiill  iit  Virtoriii,  iiiwl  tlicsc  in  tlic  vi-min 
1S^;1  tiiiil  ISS-J,  It  is  !i]i|iin'ciit  tliiil  tlic  fillet' suiinc 
ot  suiiply  tor  tile  N'ietiniii  seiiliii;^'  H«'et  ill  1SS(>  were 
the  slii|»viir(lsnii  tlie  I'jieilie  ('(»iist  of  the  I'liiteil  Stntes, 
iilitl  it  is  ii  iiiiitter  of  (•(iiiiiiinii  klKiw  h'd^'e  tliiit  S;iii 
Kniiieiseo  wiis  the  iniiieiujil  luiirket  for  vessels  mi  tliiit 
const.  I'liiler  these  rireiinistiiiiees  the  iiuirkel  Viihu*  ut' 
seiiliiij;-  eriitf  in  1SS<;  ;iiul  1SS7  nt  the  hitter  pnii,  wilh 
the  eiistoiii  (hities  nii,  iiinl  cost  ot' delivery  iit  N'iottiriji 
(if  vessels  i>{'  tliiit  ehiss,  is  iiuiteri.il  in  ileteriiiiliili;!'  the 
|iriee  uhtiiiiiiiiL;  ;il  \  ictnriii  (liirinj:'  the  periml  when 
the  seizures  were  iiiiide  in  Meiin;:'  Seii. 

The  .letUiil  Sides  of  schooners  of  li;;lit  Inirtheii  iit 
Siiii   Fiiincisco  diirin;j-  these  yeiirs  evidence  the  riil- 
iny-  niiirket  iirices  iit  tliiit   time.      W.  II.  'riioinley,  ii 
witness  on  iieliiilf  of  the  I'niti'd  Stiites  heforethe  llij;li 
i(,i7Ji.  liiiiCoininissioii.  who  is  the  most  experienced  ship  broker 
'  in  S;iii   Friiiicix'o,  iind  whose  tirni  represents  ltd  per 

cent  ot'  the  vessels  re;;istered  jit  tliiit  port,  iilid  who 
liiis  peisoiiiillv  iitteiided  to  75  per  cent  of  the  tnnis- 
fers  of  seidiii;;-  schooners  there,  testilied  to  ji  hii'o-e 
nunilter  of  sides  of  vessels  rimjiin^i'  in  foniuijie  from 
lifty  to  ii  hundred  iind  thirty,  of  which  he  Inid 
persoiiiil  kiioaleil^ic  of  the  coiisideiiition.  The  fol- 
lowini;'  is  ii  list  ot  the  vessels  ref<'rred  to,  sold  in  issii 
iind  ISST.  their  toniiJi^i'.  <liite  of  Imildini;',  iind  the 
consideriitioii  wliicli  piisse(l. 


IM. 

K'..  ni;:.' 

Hi. 


K.,  1721'. 
.50. 

K.,  \TJ-J 
33. 


l.S,S(i. 

line       Aildii    ('.  Iliizritiiir   (l-_'!»   tolls);    ridillilt  iSSfi;    oiie- 

hiilf  wiis  sold  iit  the  nite  of  ><;-,,()( iQ. 
•'"•'      (iitlihii   (idfr  (•»;}  tons);   liiiilt  in    1S74:   oiie-eijrhtli 

Wiis  .sold  lit  the  lilte  of  >>'),( MM), 
liuo      IniKi    (Ifi  tolls);    Imilt  in  1S83:    oiie-ei;;hth    wiis 

sold  !it  the  riite  of  s(;,40(). 
line      Intiiliiir  (114  toii.s);  built  ill  18(19;  one-eighth  wiis 

sold  iit  the  rate  of  s4,oot». 


KVIDKNCK — VALIK    (H'    VKHSKI.8. 


271 


I'liiji  (lOl  tons):  liiiilt  ill  MMssiicliiisctts  in  ls31 ;  Km^i"-'-'.  i''i'' 
itiu-li.iirtli  wiis  sold  in  ISSC  wx  tlic  nitc  <.r>*4.(K)(t. 

Sim  -hisr  (h2  tiiiis):   luiilt  in  ISSd;   uiu-ftMu-fli  wiis '<''--•  i 

sol. I  iit  tlic  nitf  ots4.2(Kl. 

issT. 

/Ao/wov*  (I117  tons):  liuilt  in  ls77;  niu-ci;;litli  wmsK.,  iTJ:t.  lim- 
soM  iit  tlif  riitc  ors.-,,21t;.  ' 

C'llji  of  Still  liiri/i,  (4(J  tons):  l»uilt  in  issl;  uiu-i<-.  i'-':'.  ii"<' 
loiirtli  was  sold  nt  tlit-  rate  of  n1.2(I(». 

Iniiiliiii  (\\4  tons):  liiiilt  in  is«i!i:  ti\c-sixttM'ntlis u..  in-n, imc 
wen-  sold  at  tlu-  rate  of  n;{,-_>()0.  '  ' 

hillii  A.  ((;;}  tons):  laiilt  in  issT:  ,,ii,.-tliirtcfntliK -itj:!.  line 
was  soM  at  the  rat«'  of  n.-),2(">.  '' 

Bcsidi's  till'  for»';>-oin;i-  sales,  Mr.  'I'liornlt-y  tcstiliftl 
to  transfers  of  otlu-i'  \i'ssfls  of  tlic  same  class  wliitli 
appeared  l)v  the  hooks  of  the  San  Krancisro  <Mistoni- 
house,  hut  of  which  he  had  no  knowled^i'e  as  to  the 
roiisideralioii  other  than  that  derived  from  the  records. 
The  list  of  these  ves.sels  is  as  follows: 

lS8(i. 

JSt.ssir  /v/7yv//y/// (7(»  tons):  liuilt  in  1S7(I:  onedialf";  ,'"""•  in" 
was  sold  at  tlu-  rate  of  n;,.()(I(». 

Iiii)  (;i;{  tons):  liuilt  in  1S(;7:  one-half  was  sold  at  i''..J''i".  i>"" 
the  rate  of  n-J,oo(».  "' 

Joliii  X.  hifliil/s{^\\\  tons):  liuilt  in  ls7.'t:  one-cijihth  "■•  i":'"iiii<' 
was  .sold  at  tlie  rate  of  s4,o()(l. 

18S7. 

Aiiifrl   Ihtlhi  (l!t  tons),  liuilt   in  1S6(»,  was  sold  torU--  iTiMi.iin.- 

!^l,(»(i().  '"' 

Alloii  (81  ton.s),  liuilt  in  ISSC.  was  sold  tor  ^^3,0(l().  "■;,|i'!"i- ''"'■ 
.Inhii  S.  hii/iills  (Ul  tons),  liuilt  in  1^7.'):  one-sixth  u."  it'.it.  line 
was  sold  at  the  rate  of  n  j.^Od.  '"• 

The  testimony  of  Mr.  Thoridey  was  supplemented":."''''''  '■"' 
and  cfinHrmed   liy  ('apt.  Andrew  Anderson,  a  lar<ie 
ship-owner  and  prominent  .shippin;:'  merchant  of  San 
Kraiu'i.sco,   whose    phn-e  of    liusiness    had    lieen   for 


I 


;   v., 


t 


272 


R.,  IHO, 

line 

51. 

K.,  180, 

lino 

K.,    lOti, 

liuc 

58. 

U.,  1261. 

line 

16. 

U.,   40(!, 

lint.' 

.-^1. 

EVIDENCE — VALIE    OK    VESSELS. 

twenty  ycfirs  n  rcinlt'/.voiis  of  sciilcrs  ami  otiicr  scm- 
iiicii.  'I'liiit  lilt'  sii|i|tly  ot'  .tealiii;''  vessels  was  siiHi- 
j'ieiit  to  meet  the  <leiiiaiHl  is  «'stal»lislie(l  liv  a  li.st  ut' 
over  40  vessels  in  the  harl»or  ot'  San  Kranciseu, 
which  eonid  he  iitili/.eil  tor  seal  hnntin;>'  ami  wliieh 
was;iiven  i»y  faptain  Amlerscm;  ami  Walter  Walker, 
a  witness  urodneed  on  liehalt' of  (Jreat  llritain,  stated 
that  vessels  coidd  Im-  l)oii;iht  cheapef  in  San  Kranciseu 
than  ill  N'ictoriii,  "hecaiis*'  there  was  a  larjie  iniinlter 
of  schooners  there  to  choose  tVoiii." 

The  ('aiiadiaii  iliity  iipoii  vessels  of  this  class  and 
the  cost  of  lirin;:iii^'  the  same  to  Vi«'toria  from  San 
Kraiici.sco  is  iin]iortant  in  estaldishinj)'  at  what  cost 
these  vessels  coiild  lie  sii|n»lie<l  to  the  Victoria  market. 
The  duty  upon  such  vessels  was  in  tlio.se  years  10 
|>er  cent,  and  the  expense  of  l»rin;>in;i-  them  from 
San  I'Vaiicisco  was  liei    cell  >^235  and  ^2"iO. 

From  the  lists  of  >,  ■<  testified  to  as  liaviii;,''  taken 
wlace  at  \  ictoria,  alio  lioiii  the  lists  ^fiveii  l»y  Mr. 
riiornley.  the  following;'  tal)les  have  lieeii  prepare(l 
which  show  tin-  avera^if  price  paid  per  ton  for  ves.sels 
actually  sold  at  N'ictoria,  an<l  the  avera;>e  price  per 
ton  at  N'ictoria  for  vessels  huilt  on  the  Pacific  Coast 
and  sold  at  San  Krancisco  in  iSSfi  and  1SS7: 

.liirwii  /ir'ii  imid  jirr  Idii  I'oi"  ■•iieh  Kiilil  at  yiiliiriii. 


u 


Vi'ar. 


I885| 


111-       Allriil  .Adiilin. 


18S7 

1883 

1884 


Tciii- 
llHKi'. 


(18.  7.'i 


ltl;iik  IliaiiioiHl 81.57 

''■ivoiiilli'    71). 54 

Mil- M 

Miiry  Ell™ 7H-8<i 

Miiry  Taylor 50 

iluai'iitn.l 40 

TlniiMii    o;i 

WaiiiUiir   Ifl 

r.liirk    IliallKIMil 81.57 

W.  IV  Siivwaid .WTO 

Ka\  niirili' 70. 54 

Fiiviiiirili" 70.54 

Kali' m 

Oiiwjinl '15 

Moimtiiiii  Clilif L'li 


.\(:iat 

CoHl  per 

iif  Hall'. 

Yean. 

as 

(«) 

«30.  M 

18 

W  07 

34 

an.  ml 

2:i 

fc.-|li.J5 

11 

11 

:t 

14 

(«) 

ao.  .vi 

U 

KKI.UO 

15 

.•IJT.-J8 

lu 

56.  57 

•23 

4a.:;:i 

i:i 

•I'.'.  8.', 

IS 

6  25. 00 

Unkiiuwii. 


'*  Lcs-*  thiiti. 


■  MaithT'rt  iiiteri'ttt. 


EVIDENt'K — VALUE   OP   VE8HEL8. 


273 


Arrragf  price  per  lim  al  t'irloria  f»r  reiule  hulU  on  Iht  I'uviHv  Count  and 
told  III  San  /■VoNHiro  In  ISS'i  ami  IHHT. 


Vi'«r. 


VWM*I. 


fiml  nunilrj)  till. 


1MH7 


Aililli'lMlii/i'ltllli'. 

(lulili'iiOalc  

Irni* 

Ivniihd* 

Sun  JoNi* 

Itarlmra   

<'li.\  <>l  Sun  IMpgii.. 

I  \  iiiihiM< 

I.il\  I 


Sfctiiitl  Thontley  iiel, 
Iti'Hnli*  Kvertlln^ 


IHX? 


•inliu  N.  InuitllN. 
AiiKi'l  Ihillv  ... 

Altiiii 

Mjtrlmni  

'lohliN.  Iiiuulla. 


Toil 


I3U 
Kl 
Kt 

114 
5!l 

HIT 
4« 

114 

iia 


7(1 
IKI 
01 

111 

M4 
107 
III 


'"    ••""  Vi.-lMlijIff 


Year 


I'-l 

Hi.''* 

I'.' 

«l    HJ 

;i 

711.  :rj 

i; 

411.  7» 

ti 

113  ll.'i 

III 

.'..'..  *» 

« 

iil.:iu 

i» 

;i:i.  117 

II 

W.Trt 

III 

HJ.  U 

111 

jii.  :i4 

II 

.'il.WI 

27 

71.0.'i 

1 

VJ.iitl 

III 

.-a  7:1 

VI 

511.  Ol 

ir  'Ciwt  |ii'i  tonili'liviTt'iliil  Vii'tiiriii'  iHlMiHi'iliiiitlicnjiiiiirtiii'VtiKwIiii  San  riiin..'Wici 
Willi  III)'  ilnlv,  10  |ii  r  cent,  aililiil  anil  i'S*).  tlii'  hiiilii'xl  priii'  IImiI  liir  lirinuinu  a  vmnil 
rroiii  Sun  Frani'JKrii  tn  Vlrtiiria. 

hKi'liiillt. 

Ill  foiitrast  tn  tliis  cvidciifc  priiduciMl  on  tlic  piirl 
(it"  tlu'  I'nitcfl  Stiitcs  wliicli  ♦•stiildislicd  nine  siiK-.s  nt' 
sciiliii;^-  vessels  at  N'ietoriii  in  IHSC  iinil  ISST,  and  six- 
teen at  Sun  Francisen  in  the  same  years,  and  taken 
in  eonnectinii  w  itii  the  statement  nt'  loiiiisel  mi  Itehalt' 
of  (Jreat  Uritain  as  to  the  value  ot"  "actual  sales"  as 
evi(h'iiee  of  market  value,  is  the  followinj;  list  of 
transfers  at  N'ietoi'ia  proved  l>y  witnesses  prodiieed 
liy  (treat  Hritain,  and  which  it  is  contended  are  of 
little,  if  any,  assistance  in  determinin;--  the  market 
value,  lieinji'  so  few  in  number,  and  their  dates  so 
remote  to  the  time  when  the  seizures  occurred. 

1890. 

Maril  7V////ar  (;">(»  ttiiis),  huilt  in  1.S75,  was  sold  atR.,  105. 
\'ictoria  by  VVaiTeu  to  Muiisie  for  about  84,000. 

18!»;{. 

Vera  ((»(»  tons),  built  in  188S,  wks  sold  at  Victoria R,  i^i. 
for  $7,442. 

B  s 35 


1^:1' 


i:i    ^iij 


274 


R..  141. 


R.,  105. 


K.,  104. 

K.,  l.^f. 
K..  l.Vt. 

R.,  lOJ. 


K.,  754. 
47. 


K  .  1424, 
30. 


EVIDENCE — VALIE   OF    VESSELS. 

Ainiic  /•;.  /'<iin(  (S2  tons),  huilt  in  1S85,  wii.s  sohi 
nt  Vict<»riii  iil.out  1S<»3  (?)  for  s«»,400. 

1894. 

Offo  (St;  tons);  oni'-ciiiiirtcr  interest  wjis  l)on<ilit  1)\ 
Munsii-  at  tlii'  rate  ot"  >;")..")()(•. 

Itcsidt's  tlu'st'  .saU's  at  \'ictona,  (livat  Britain  pro- 
(hu'cd  evidence  to  estaldisli  wliat  was  tlie  cost  of  ves- 
sels, |>nrciias(Ml  in  Nova  Scotia,  when  delivered  at 
Victoria.  The  sdiooners  hnilt  in  the  east  were  of  a 
sn|>erior  class  of  niat«'rial  and  worknianship  to  those 
jtrodiiced  in  the  shipyards  of  the  I'acilic  ('(ta.st,  and 
were  with  hut  one  exception  comparatively  new  ves- 
sels, it  is  therefore  contended  that  the  prices  jtaid 
for  su(di  craft  are  no  criteritm  of  the  niarkt't  value  of 
vessels  constructed  of  Donjilas  fir  i»y  h'ss  «'xperieiiced 
Ituildei's. 

The  list,  dassitied  by  years,  is  as  f<dlows: 

l.s8tl. 

I'dthjiiidir  ((!(»  tons),  ituilt  in  187M,  was  purchased 
in  Nova  Scotia  hy  ^lunsie.  Her  cost,  delivered  at 
Victoria,  was  >;t),"»U(l. 

1  •<.S7. 

Aiin»(i  (ahout  7<)  tons),  huilt  in  1  SSI,  was  purchased 
in  Nova  Scotia  forSii jjiJO.  She  cost  r^l, •_*()!>  to  hrinji- 
her  to  N'ictoria,  niakin;>'  a  total  of  87.8(10.  It  appears, 
however,  she  had  an  accident  in  the  Straits  of  .^Ia<^•el- 
lan,  which  unth>uhtedly  a<hled  to  her  cost  at  \  ictoria, 
l)ecause  of  d«'lay  and  re]»airs. 

\"h(I  (alxMit  !•■_*  tons),  huilt  in  iSSa,  was  purcha.sed 
in  Nova  Scotia  and  l)roii<>ht  to  Vi«'toria  hy  .Munsie. 
Her  cost,  delivered  at  N'ictoria,  was  ahout  SK^OJO, 

I'""'  Sdjiitliirf  {\'2',\  tons),  huilt  in  1SS4.  was  purchased 
in  Nova  Scotia  and  i»rouj:ht  to  Victoria,  hut  the  cost 
of  tlu'  ves.sel  Wiis  not  j^iveii. 

line  'ffiiDiiftli  (97  tolls),  huilt  iu  1S87,  was  purcha.s(>d  in 
Nova  Scotia  hv  K.  ( ".  liaker  and   Daniel  McLean  for 


H85,  Wiis  sold 


ills   l)OIl"llt    I)\ 


EVIDENCE — VALUE    OF   VESSELS.  275 

Silirt.dOO;  tU'livort'd  at  Victoria  in  April,  IhHH,  sluM'ost 
her  <t\viu'rs  8.S,2.')0. 

1890. 

(hcfiH  lifllr  (SO  tons),  built  in  18S4,  was  pin-cIiascdK-iss- 
in  Nova  Scotia,      llcr  co.st,  <lclivcri'd  at  Victoria,  was 
88,()()(). 

(Iinrra  (*)(•  tons).  Itnilt  in  ISHo,  was  pnrcliascd  in  B.,  158. 
Nova   Scotia.      I  lor  cost,  delivered   at  N'ictoria,  was 
!SS,70(). 

18<>1. 

Itoni  Sif/ranf  (!I3  tons),  pnrchased  in  Nova  Scotia.  K,  1S8. 
Her  cost,  delivered  at  N'ictoria,  was  >S*J,(I3!).-_M» 

From  tile  tore<>-oin;.-  list  of  sales  iit  \ictoria,  fnr- 
iiislie<l  by  the  evidence  of  witnesses  sworn  on  behalf  of 
the  claimants,  and  of  the  list  of  schooners  bronjiht 
from  Nova  Sccttia  for  sealing'  purposes,  the  followin<>- 
tables  have  been  prepared,  sluiwinj;-  the  price  per  ton 
for  such  vessels  in  the  \'ictoria  market: 

. I rcrof/c price  paiil  iiii-  Imi  for  vtfmh  solil  iil  I  icturin. 

I  Ail''  Mt       ,.     . 

iT.Miinip..     liiu,.  of     <'""1»"- 


iS'' 


m 


V.'iir. 


\**'sm,>Ih, 


IMKI     Miirv  liivlm-... 

IWW     Vi'ni  ....' 

Annio  l'^.  raiiit. 

1«U      (111, I 


lV(lr.v. 

«0                   S  124.  (W 

l<L'                   S  lU.lU 

ml  lu.  Of) 


(I  AbiMlt. 

Arnage  priie  per  tun  al  Virtoriafnr  nHnU  piirchiKml  in  .\oni  Srolin. 


Vi'nr. 


WO 
IHH7 


18»l 


Patlifi  tiller. 

Auriirii 

VIv 


■Sii|i)ililri'  . 
'rniiiniili  . 
(Iifiiii  lli'll 

(tl'llOVII  . 


Vogm-la. 


l>i)r»  Siewenl . 


Tonini^i' 


70 


Agf  III  (Hal  lii'i- 

IfllMMir  ton  lll>- 

imr-  Ii\eri'd  al 

clinMi'.  X'ii'loria. 


fll8.  40 
,1  111.. 17 


06.(17 


a  Aui'idout. 


;il 


276 


EVIDENCE — VALUE   OF   VESSELS. 


Friiiu  tlu'  foivjioiiifr  suiiiinnrv  of  the  t'vidi'nce  j)re- 
s«'iit«'<l  hyhotli  pnrtii's  to  this  coiitroViTsy,  the  t'ollow- 
iii;>-  tiilth-  is  sulniiittol  as  sho\vin;>'  tho  Jivenijiv  nuirkct 
])r\rv  |ier  ton  tor  seahiifi-  vessi-ls  jit  Virtoria  in  tlic 
years  18S6  ami  1SS7,  as  cstahUshi'd  l)y  actiutl  sales. 
The  talilf  contains  tin'cc  Nova  Scotian  vessels,  whicli 
an-  incluthMl  to  avoid  jniy  charji*'  of  unfairness,  al- 
thoujili.  as  ;ih-ea(ly  stated,  these  seliooners  were  far 
superior  to  those  sei/C«'d,  both  in  material  an<l  con- 
struftion. 

I'riii  per  lull  in  ISS',  and  !SS'  /or  leisih  at  I'iiloria,  as  uliiiwn  by  aetiial 

Kd/ra. 


YiMi-. 


lHWi 


VetSfl.*. 


Itlafk  l>i:iiiiiiii(l    

FavMiirili- 

Kjite 

Mar>   i;il.-li 

ItliK-k   |)iillilnliil 

\ililix  r    Ihl/rllilH' 

.;. .1.1.11  i.al.- 

Irnia  

I  \  aniiiie 

San  .T.isi- 

Harliara 

Ciiv  i.f  San  Uit'gu. . 

Ivaiih.M- 

l.il.v  I 

Ii... 

.I..I111  N    IllL'ull-     .. 

Ann.l  Hollv 

All. .11    ....'. 

HurbiM-ii  

.liiliM  N.  Ili::all-.     .. 

Pnthtiii.lf  r 

Viva 

'rriiiiiipli 


AvtniK'- 


0  tii:!        4  ii.  HI       II  III  i:>     Hi  vi-ars 
yt-ais  tilil.  \far-rt  i.lil.  Vfjirs  old.  aiidox.-r. 


|144.  r>8 
I!'.  :i'j 
11:1.  «•) 


$;iu.  5ii 
Ds.ii: 
:io.  (Ill 
511. :'.-. 
:iii.  511 


»lll.S'.> 


9l.:io 


!M.  711 


5:1.  73 
IW  411 


5:1.  51 


!I7.  X-2 

85. 115 

7H.  'JO 

711. 1") 

55.  47 

;«>.  7:1 

N'lil  K.  -Tlir  .1  niiira  im  ..iiiilli'il  frmii  lliis  tal.I.-.  a.i  it  a|i|icarM  Crulu  tin-  i'\  iilniri'  tliat 


nht'  iiif  t  Willi  an  a.-iiil.-nl  in  llie  SlrailH  iil'  Mai:t'll:in,  wliirli,  a.i  aln-ailv  hiuIimI, 


eilly  iinr.'a.-**il  llii-  i-\|N-iiie!*  .if  lirili;:in:;  *lit'  v.-hsi'I  ( 


iiloiil.l- 


\^nti  Si'olia. 


Oi 


The  second  elass  of  evidenci'.  relatiiifi'  to  the  valui 
Nt'ssels,  pre.sented  to  the  Coniniissioners,  jtnrtake 


III- 


ot  th«'  character  of  expert  testinion\ ,  and  is  siihst; 
tially  the  only  »'videuce  relieil  upon  in  the  ArjiUineiit 
1  liehaU  of  (Jreat   Hritain  to  estal»lish  the  value  of 


01 


tl 


U'  selzeil   \"essels. 


'I'l 


le  prounnence  "ivtMi  tins  clfiss 


of  evidence  l)v  (ireat  Hritain  demands  a  detaih'd  ex- 


ICVIDENCK — VALt'E    OF    VESSKL8. 


277 


$;iu.5« 

38.117 

30.00 

M.S5 

:iii.  511 

20.  :u 
71.05 


ainiiiatidiiof  tluM|U!ilitic'iitions,  ('inii|H'tt'iicv,  aiul  civdi- 
bility  of  each  witiU'ss  sworn  on  liclialfof  citluT  ottlio 
liij-li  contra I'tini'-  |»arti«'s. 

Tlu'  witnesses  prodnci'il  hy  (Jreat  Hritain  will  he 
lirst  discussed  in  the  order  of  importance  j;iven  them 
in  the  Aryinnent  on  heiialf  of  the  (daimants. 

Walter    Walker,  termed    in   the   Ariiiuneiit    '"''hi])-,,,.    ^^„    g. 
wrij^ht   and  itroprietor  of  shipyard,"  an<l  cited  as  to    Uno'K 
the  value  of  the  ('(irolnm,  Oinranl,  Anna  lir<h\  (irncr, 
(iiiil  Ifolpliiii,  \\i\s  <t  joiiriici/iiKiii  ■^liipcHriiciil)!-.      it  does 
not  appear  that  he  ever  huilt  a   sealinji-  schooner  or 
worked  ujHin  one  in  course  of  construction,  nor  does 
it  ap]ienr  when  he  lu't-ame   interesteil   in    "'l'rahe\'s 
shipyard,"  of  whiidi  he  claiuu'd  tohavel)een  the  pro- 
])rietor;   l)ut   in   1S,S,'{  ju.  was  workinj:'  as  foreman   in 
rejiairinji'  a  (Jovernment  steamer  and  left  his  trade  in'^r.j^'^'  ''"" 
April,   1SS4,   to  hecome  measurin<>'  sni'vexor  of  tlu'i'-'  '"•"'•  i''"' 
port  of  Victoria.      His  estimates  of  value  are   l)ased  i{./'isi,  lim* 
on  what   it  would  cost  fn  hii'ihl  vessels   in  N'ictoria  in     "*• 
the  years  ISSli  and  1SS7,  and  do  not  refer  to  market 
value,  as  is  shown  hy  the  following'  from  his  exami- 
nation : 

Q.  Y»m  can  oiily  tell  wliat  it  wouM  cost  to  Imihl  a  scliooiu'r  R..    ixi. 
here  in  Victoria  where  they  did  not  iiavc  tiie  siiip  ehiuidlery     '" 
material,  and  where  they  would  have  to  pay  a  hijvh  i>rice  it 
they  did  j;et  it:  that  is  all  voii  jnopose  to  tell? 

A.    Thai  is  till. 

Q.  When  y(Hi  testilied  as  to  the  value  of  ships  in  l.s.sd  you  l>'-.  i*^"'. 
were  not  very  familiar  with  vessels  that  were  sold  in  that    ^"" 
year,  were  yon,  or  familiar  with  their  prices? 

A.  No. 

rill     •  .  II  •  I        1  ..  .  .  "■•      '''■'•     ''"'" 

I  Ins  witness  had  repaired  the  hiinmntc  alter  IS.S'J.     i(i:iH;i,iiiie 
and  was  therefore  familiar  with  her  luiild  and  condi-    ''' 
tion.      When   recpiested   to    jdace  a    value   upon   her 
repaired,  he  <iave  as  his  opinion  that  she  was  worth '<••  "*'•  'i'li* 
87,0»l(l  or><si(KIO.     The  ve.s,sel,  which  was  (.f  S(l  tons    "'*' 
rt'oister,  was  actually  sold  in   1S,S4  tor  >;4..">00,  and  "■,•„'"''  ''"" 
aya in  transferred  in  ISSG  "just  as  she  came  from  .sea"  uvTniy,  liuo 

85. 


line 


lino 


27S 


R.,    185,  line 
18. 


R.,  40n,  line 
67 ;  8y2,liuo 
50. 


K.,   836,  line 
53. 


R.,    !I80,  line 
35, 


K..   im,  line 
10. 

R.,l'J7,liue8. 


R.,  1015,  line 
18. 

R.,  197,  Hue  5. 

R.,  li«t,   line 
17. 


R..  199,  lino 
67. 


EVIDKNCE — VALUE   OP   VESSELS. 

for  S3,(KK).  QuostioiKMl  as  to  tlie  schooner  K<ifi\  the 
witness  said  he  knew  her  ami  showed  intimate  knowl- 
edji'e  ot"  her  eonstrnction.  When  asked,  "In  1SS(I, 
wiien  she  was  here,  what  was  she  worth  ?"  he  rephed: 
"I  sliould  think  slie  was  worth  about  8(1, oOO."  This 
hitter  vessel  was  of  (!l)  t<»ns  ref>ister  and  was  trans- 
ferred in  1S8(!  for  81,8(10.  The  (|uestion  was  raised 
on  his  redirect  examination  whether  he  was  well  ae- 
(|Uainted  or  not  with  these  ve.ssels;  but  it  appears 
that  he  was  licttrr  a<'(|uainted  with  them  than  with  the 
Thornton,  of  which  his  valuati(»n  is  relied  upon  in  the 
Arjiument  on  behidf  of  (ireat  liritain.  He  based  his 
valuation  of  the  (iracc,  Dolpliiii,  and  IT.  P.S.Saifinirtf 
on  what  they  iroKhl  co.-it  to  hnild,  and  on  the  fact  that 
thev  would  not  have  depreciated  in  five  or  six  years 
after  l)ein»;'  launched. 

Orlaiuht  Warner  is  cited  in  the  Arfiumeiit  on  behalf 
of  (Jreat  Britain  as  to  the  value  of  six  vesst'ls,  tiie 
('(irolnia,  Tlionitoii,  (huronl,  Aiiiin  llcck,  dnici',  and 
Ihl/iliiit.  lie  also  was  a  joitnici/iiKui  ship  idtjiniter 
and  was  for  four  years  interested  in  a  shipyard  in 
\  ictoria;  as  he  was  so  intert'sted  in  1S!I1,  he  was  l»ut 
i\  jouinrjiHHiii  in  18S(;  and  1SS7.  Mis  exi)erieiice  in 
buildiii<isealiii<i' vessels  consisted  in  workiiijiasa  jour- 
neyman (tn  the  Dol/ihiit  in  lSSl,aiid  in  iSHOand 'lS!»l 
coiistructinji'  un<h'r  contract  the  hidls  of  two  .schooners, 
lietweeii  the  years  lSS4and  ISSS,  in«"lusive,  he  built 
no  vessels.  lie  bases  his  valuation  entirely  on  what 
it  would  rosf  to  Iniilil  a  rcsscl.  In  re<iard  to  the  value 
of  the  ('(ifolnid  he  testified: 

Q.  Now,  when  you  put  lier  price  at  i?3.8(M>  or  $4,(K)0,  are 
you  thinking  of  what  it  would  cost  to  Imilil  liert 
A.  That  is  my  idea;  ye.s,  sir. 
Q.  To  build  her  new  ? 
A.  Yes,  sir. 

Q.  And  yoH  base  your  estimate  on  thutt 
A.  Yes. 

A»  a  witness  upon  the  question  of  the  value  of  the 


KVIDKNCK — VALfK   OK    VK88EL8.  27i> 

arari'.   Dolphin,  Anna   Ihrk,  jind  W.  P.  Saifinin/,  lie 
tewtitii'd: 

Q.  Your  estimate,  of  course,  as  usual,  is  based  upon  your  K.,  1016,  line 
estiuiate  of  costt  4U. 

A.  Yes. 
Q.  Entirely? 
A.  Kntirely. 

It  is  coiitciulcd  tiiiit  the  tcstiiiiony  of  tliis  witness 
OJiii  possess  n(»  \\ei;;Iit  in  (leteniiiiiin«>' tlie  viiiue  of  the 
vessels  seized. 

(leorjie  W.  Cnvin,  cited  in  tlu>  Arjiunient  ..n  heludf 
of  (Jreat  Hritiiin  iis  to  the  viiliie  of  the  Tli<in,t<»i,  Ainia 
liirk,  (inirr,  ■M\{\   l)fi//,lun,  was  -a  jotinniiwaii  s/iifi  cnr- 
pciifn;  why  i\Ah>\\vi\  his  tnide  about    halftiie  time. '*••  ."'-^' ''"« 
His  experience  in  1S,S6  appears  hv  the  fAlhiwin;--  te.s-    ^*^' 
tinionv  : 


Q.  Did  you  own  auv  vessels  in  ISSd? 

A.  No. 

Q.  Huy  any  part  of  one  f 

A.  No. 

Q.  l)o  you  know  of  any  sales  in  those  years? 

A.  No;  I  had  nothing  to  do  winitever  "witli  any  sales. 

It    is  needle.ss  to  criticise  the  value  of  this  witne.s.s's 


K.,  lOL'i),  lin.) 


testimony,  further  than  to  (pi,>te  his  actual  lanyu 
n  reoard  to  the  Ditliihin,  in  connection  with  tl" 


ili'e 


le  e\i- 


denceof  .1.  I).  Warren,  the  a<>ent  for  the  owner,  that  in 
1881  the  (iidvr  (which  was  larj-er  than  the  Ihiljilii,,) 
cost  him  to  Iniild,  withcnmi 


U.,  ll.r..  line 


les  compU'te.  Sl(;,oo() 


Q.  l>o  1  understand  that  you  put  a  valueof  .*H,(K)Oon  the     'J'*^'' ''"" 
ull  and  spars  of    ■      - 
A.  Yes. 
(i.  And  outsic 


the  Dolphin 


nia<le  ready  for  sea 


•f  that  she  would  have  to  be  rigged  and 


A.   Y 


es. 


t^  And  you  think  it  would  cost  about  one  third  of  |14,(»0() 
to  rif;  her  to  ^et  ready  for  sea  ? 
A.  Abcuit  that,  I  think. 
Q.  That  would  make  about  .*4,700  more? 
A.  Yes. 

Q.  So  that  tlie  Ihlphin,  without  her  machinery,  would  be 
worth  aiI8,7((0? 


.►•fci 


¥    ,m 


2  SO 


EVIDENCE — VALUE    OF   VESSELS, 

A.  Yes;  slie  would  run  pretty  well  up  to  that,  I  think. 

Q.  And  about  how  much  would  her  engines  and  boilers  be 
worth  ? 

A.  They  would  he  worth  3«;J,()00  or  $4,000. 

(i>.  A  large  engine,  like  the  Dulphiii'H,  would  be  worth  at 
least  $4,(100  or  $5,000,  would  it  not! 

A.  I  don't  know;  that  ain't  a  part  of  my  business;  I  ani 
not  an  engineer  or  machinist. 

ii.  But  that  would  cost  at  least  $4,000  or  $5,(M)0,  yon 
think? 

A.  It  is  pretty  hard  telling  in  XMctoria  about  how  much 
she  would  cost  at  that  time. 

(^  Give  us  your  idea.     Yon  said  ^.^OCK)  or  $4,000? 

A.  They  might  have  cost  that  and  might  have  cost  a  great 
deal  more. 

<k>.  They  would  at  least  cost  that? 

A.  Yes,  thev  would  at  least  cost  that. 

Q.  So  that  would  make  the  Dolpliin  worth  about  $22,000 
or  $2;{.000,  with  her  machinery  in? 

A.  Yes;  1  don't  *'  '"ik  she  would  cost  much  less  than  that 
at  that  time. 


Br.  Arc-, 
line  :>r>. 


!»7 


K.,  ItitJ, 
4(i. 

K.,  83G, 


R.,  ^S, 


K.,  «35, 
li7. 


R..  831, 
04. 


R.,  1713. 
35. 


line 


lliihcrt  .1.  Ctiok,  citi'tl  in  tlu-  Arf^iiiiu'iit  on  bclialt' 
<»t'  the  cliiimiiiit.s  as  to  the  vahu-  of  tlie  Tlidnifoii, 
(hnranl,  ixnil  A  iiii((  Ilccl,;  t\s  "a  sliipwriolit  iiml  i)roi)ri- 
I'tor  of  slii|»\  arils  for  niaiiv  years  at  \  ictoria"  and  "an 
ex|terieii('e(l   hniMer,'   was  ])ro|)rietor  of  a   sliipvanl 

line  [trior  to  iScS;},  ill  wliicli  year  Turpel  reiitetl  it,  and 
who  at  the  lime  <if  his  exaininati(»ii  was  workiiiji"  as  u 

,.     iiiiinicifiiHi.i.      I  )urin<>'  the  si.vteen  years  he  chiiins  to 

line  * 

have  heeii  eiiji'a^ed  in  huihlin^'  he  never  constnicted 
anv  sealinji'  schooners,  but  he  caU'iihites  the  vahie  of 

lineji  vessel  ill  lcSS6  on  the  Inisis  of  what  it  would  ro.sY  (o 
liiiilil  one  at  that  time. 

The  <-a|taeity  (»f  tlie  siiipyard  inanaji'ed   hy  Cook 

line  is  shown  by  his  statement,  that  in  1H7S  it  took  him 
elrri'ii  iiioiifhs  to  partially  rebuild  the  Tlionifon,  while 
Matthew  Turner  testified  that  in  his  yiU'd  at  Sau 
Francisco  a  KHI-toii  vessel  usually  took  sixty  (hiys 
to  l)uild  "n-ady  for  .sea,"  but  coidd  be  completed  at 
increased  expense  in  thii'ty  days.      Cook  was  (^ues- 


Hne 


EVIDENCE — VALUE   OF    VESSELS. 


281 


K'.,   nXi.   line 
II. 


ti(»iu'(l  }ts  to  inarki't  vnliic  ii.   ISNC,  anil   testitii'd  as 
follows: 

Q.  How  do  y«m  know  wbat  it  would  cost  in  1886? 

A.  JJeeansi'  I  knew  what  the  ])ii(os  were. 

if.  How  do  you  know  anything  about  tlie  market  value  of 
boats  in  18S(i  >. 

A,  So  tar  as  that  goes  there  was  uo  real  market  value. 

Q.  IJut  boats  were  transferred  from  one  jierson  to  another 
at  that  time .' 

A.  Yes;  we  used  to  buy  some  ves.sels  from  San  Francisco, 
and  some  came  out  from  the  Kast. 

As  nine  sales  in  Victoria  duriiiji'  ISSC  were  tostilitMl 
to  iK't'ore  tlu-  IIi<;li  ( 'oiuniissioii,  as  already  shown,  the 
iiU'onii)etency  ot'  this  witness  is  apparent  lie  slated  "•.'.***''  '"'•' 
in  his  examination  that  the  'flionitoii  in  1877  was 
worth  >i'),l*0(>.  Hein<>'  (piestioned  as  to  the  extent  of 
the  repairs  he  made  npon  the  vessel  in  that  \  ear,  he 
replied: 

She  was  worth  more  when  1  was  done  with  her  than  sheR-.  '^^^l.  I'uc 
was  when  she  was  built  first.  -"'• 

Q.  Well,  then,  your  bill  would  represent  the  complete  value 
of  the  .ship? 

A.  It  would  at  that  time. 

He  was  fnrther  asked: 

().  Mr.  Cook,  did  you  estimate  the  cost  of  repairing  theR.,!i:r>. linoit. 
ThoiHtitit  in  the  year  1S77  at  s?;},."*!!*! .' 
A.  Yes,  sir. 

It  is  nnnece.s.sarv  to  fnrther  review  the  evidence  of 
this  witness  or  to  discu.ss  his  competency  as  an  expert. 

Kichard  Mennett,  cited  in  the  Ar<>ninent  on  hehalf 
of  (Jreat  Britain  as  to  the  valne  of  the  Anna  link, 
(inirc,  And  Do/jtliiii,  was  a  joiinici/iit'H'  xli'li  rdijxiiftr,  l>'--  I'WS,  line 
who  state<l  that   he  did   not  know   nnu'h  abont   the    '' 
vessels  since  1SS3.     His  testimony  in  the  case  of  the 
Ihlplihi  and  (hucv  is  in  relation  to  the  vast  af  hitildiiK/ u,,  i(«7,  line 
them.  '     »'■ 

In  the  case  of  the  Am/a  life/,:  the  followin<>'  appears 
in  his  examination: 

Q.  I  )id  you  have  anything  to  do  with  the  sale  of  schooners?  ^    ^^y^  li,,^ 
A.  No.  'i7.  ■  ' 


^i 


H    S- 


-3(5 


w 


282  EVIDENCE — VALUE   OF   VKSSF.LS. 

(},  From  actual  sales,  do  you  know  anything  about  the 
value  of  the  deet  of  sealinji'  schooners  heref 

A.  I  would  have  to  take  account  of  the  vessels  and  look 
over  them. 

(^>.  Being  a  shipbuilder,  do  you,  in  estimating  values,  largely 
give  vour  own  idea  of  tlie  cost  of  tiiera? 

A.  I  do, 

i).  You  are  (|uite  positive  that  the  cost  was  (theaper  in  1881 
than  in  1880 1 

A.  1  am. 

<^>.  The  i'o.'»t  of  building  was  very  liigli  in  188(1! 

A.  It  was. 

<i>.  And  tiie  value  of  the  vessels  correspondingly  increased  f 

A,  It  did. 

i).  Do  you  know  anything  about  the  difVerence  in  the 
values  of  vessels  between  1881  and  188(i? 

A.  Xo,  1  «lid  not  give  it  a  thought. 

Till'  kn(»\vltMl;;v  aii'l  cxpfriciu'i'  of  this  witness  arc 
onrirt'ly  iiisiitHcicnt  to  jiivc  his  opinion  as  an  cxpiTt 
tlic  sh<iht('st  vjihu'. 

Ah'xauiU'r  Watson,   jr.,  citi'd  in  the  Argument  as 
to  thi'  vahic  ot"  tlie  ('iiidIcihi  jinil  Oiiintnl,  was  ji  joiii- 
K.,  iss,  wwo  lie II iiKi II  >iliii>  riirjiriifcr,  who  hiiilt  on  contract  the  hull 
™-  ot"  iiiir  siiiHiifi  rcssi'l,  I  he  Miiiiiir,  in  18SII.      He  stated 

R.,  i8!t,  linithat  he  knew  ot'  no  sales  ot"  schooners  in  1884,  iSS"), 
*3-  ISSC.    or  iSS'i'.      His  i;^norance  ot"  values  and  his  in- 

competency as  an  expert  are  shown  by  extracts  from 
his  examination: 

K.,  18!>,  line  (J.  I  low  do  you  know  what  the  CVoo/cHrt  would  have  sold 
for  ? 

A.  1  do  not  know  what  slie  would  have  sold  for. 

().  How  do  you  know  how  nuich  she  was  worth? 

A.  I  gave  my  opinion  of  her  value. 

t).  How  could  you  form  au  opinion  of  her  value  when  you 
don't  know  what  the  market  price  was? 

A.  1  could  fell  by  what  I  heard  of  vessels;  it  was  only 
hearsay,  of  course. 

(f.  You  can  state  what  she  cost  to  build  '. 

A,  Yes. 

i).  Tliat  is,  vour  own  oi)inion? 

A.  Yes. 

().  Yon  do  not  know  of  a  single  sale  of  a  vessel  in  these 
years  i 


5H. 


KVIDKNCi: — VAMK    OK    VESSELS. 


2S3 


V.  No;  tliert' inifflit  liave  hiHMi  siilf  s.  but  I  don't  k 


tiling  about  tliciii 

He  stated  tliat  he  ki 


ii'W  what  It  wo 


iiKl  li 


now  anv- 


il \e  CdSt  to 


build  tlio   ('(irnlriKi   in    lSS(i.  l,ut    ii|miii    ln-iiin-  aski'd 

what  such  cost  would  have  liccii,  he  rcplit'd  that  he 

would  have  to  have  the  specilications,  and  fliaf  lir  (fidii-.m,  line 

not  hittnr  the  Innitli,  lirrailtli,  a  ml  dififli  of  Imld  of  fit 

Carol, 


u. 


(■ltd. 


In  his  exauiination  as  to  the  value  of  the  OiiirnnKii-  ><•"">,  li 


which  he  had  never  worked  on,  hut  had 


<een  in  then 


r.o. 


ina   Ml   ISSf),  he  stated  that  his  val 


ua- 


U" 


harlior  of  \'ict( 

tion  was  liased  on  a  calculation  of  xV2^>  perrejiistered  "V 

ton  lo  hiiilil  II  iiiir  rrs.sri  of  tliiit  iliis.s  in  18S():   and  on 

this  liasis   he  valued  the   Omninl  at  from  >^4.32"i  to 

>*5,00(». 

His  testimony  disci 
ranee  of  this  witness. 


8."i!t,    line 


K..  X5S.    line 


OSes  till 


th 


incom|ieteiK'v  and  i<ino- 


S.  .McC.  Smith,  cited  in  the  Ar<:uinent  on  hehalf  of 
Great  Hritain  as  to  the  value  of  the  dnni'  and  liolphi,,. 
was  for  a  numlier  of  years  a  imisfrr  .sliipinliflil,  work- 
in<-'  at  his  trade  in  A'ictoria:  and  his  examination  dis- 
closed three  sealin<>'  vessels  u|ion  whit 


h  I 


le  \voi 


ked 


111 


liU.   line 


that  capacity:   hut  his  exiierieiice.  in  which  he  noted 

the  cost  of  huildiii<i',  was  coiiHned  to  the  \cars  ls9(i,  «••"":*. ' 


18. 


IXIII,  and  18!>-_>.      When  (iue.-<tioned  as  to  the  Cm 

lniii\s  value,  he  stated  that  he  never  had  seen  her,  liiit";,  '"''  ''"'* 

he  iiiiiii/inril  that  she  would  he  worth  about  N.'l.edO  or 

83,700.      He  is  not  cited  in  the  Argument  in  the  case 

of  the  Ciirolniii,  |iresumal»ly  either  out  of  deference 

tor  his  method  of  valuation  or  because  his  imaiiina- 

tioii  was  not  strouji'  eiioii<>h  to  bring'  his  figures  as 

high  as  the  other  witnesses  sworn.      He  based  his  vain-  K.,  loio,  line 

ation  of  the  Ciiiri'  and  Dolphin  on  what  it  would  lost 

to  liiiilil  Hum  in  188fi. 


Vi. 


It  is  contended  that  this  witness  has  not  1 


leeii  siiowii 


([ualified  to  give  testimonv  as  an  expert  for  the  vea 
18K(i  and  1SS7. 


rs 


John  J.  Hobinson,  cited  in  the  Argument  on  behalf  i''-  ^-'^^ 


M 


I 


la,' 


284 


EVIDENCK — VAI.IE   OK   VESSELS. 


H.,  i:.ti 


H.,  155. 


K.,  l.-)tl. 


lit"  (iiviit  Mritiiin  jts  to  the  vnliic  nt"  tlic  ('inolciiii,  \\i\s 
a  joitiiiijiiiKiH  sliii)  riujxiitri;  »'ini»l()yt'«l  at  tlii*  yiinl  of 
Andrew  Laiiijf,  oiR'  of  tlic  clMiiiiants  l)efort'  tlic  Coiii- 
inissioii.  Tilt'  witness  stated  tliat  lie  never  l)iiilt  a 
sealin<j'  scliotMier,  never  luiiifilit  one,  and  never  sold 
one.  Fnrtlierniore,  tlio  Kecurd  does  not  disclose  that 
he  ever  worked  npoii  any  seal  in  j>- vessel  exceptin;;-  the 
Cmoli  nil  i\t  the  time  when  she  was  len;;thened,  in  1SS4. 
'{'he  vahie  of  the  testimony  jiiven  by  this  witness  is 
lu'st  shown  l»y  extracts  from  his  examination. 

i).  Ill  tin.'  coiir.se  of  your  business  here  have  you  acquired 
11  iiiH)\vle(lne  of  the  value  of  vessels? 

A.  No.  I  could  not  .say  that  I  have;  I  have  jieneral  ideas 
all  round. 

(}.  Have  you  any  opinion  as  to  the  value  of  the  CaroUtui 
at  that  time ;' 

A.  I  should  think  she  was  worth  between  $4,(MI0  and 
!«5.<KH). 

ii.  Have  you  any  opinion  as  to  the  cost  of  building  vessels 
per  ton  in  Nictoiia  at  that  time  and  prior  to  that  time? 

A.  Oh,  I  suppose  all  the  way  from  ■•<1.">(»  up,  builder's 
measureinent. 

•  •*•••• 

A.  I  have  never  built  any  schooners.    That  is  my  idea. 

(i.  After  you  hud  completed  your  work  on  the  Catofvna, 
at  what  did  you  value  her  per  ton  t 

A.  Oh,  I  su])po.se  about  ^U\'t. 

(}.  She  was  worth  then  more  than  it  would  cost  to  build  a 
new  vessel '. 

A.  You  have  got  to  take  the  vessel  apart.  You  can  not 
take  her  a]>art  for  nothing. 

().  Then  that  ves,sel  that  has  been  cut  in  two,  and  has  been 
lengthened,  is  better  than  a  new  vessel  ? 

A.  No,  sir;  certainly  not.  It  takes  more  labor  to  do  it 
that  way;  .she  is  w(Uth  more  after  you  have  tinished.  It 
takes  more  labor  in  i)roportion  to  do  that  work. 

<^.  Is  she  worth  more  than  a  new  ves.sel  of  that  length? 

A.  I  don't  say  she  would  be  worth  more  to  her  owner. 

(i>.  Was  she  worth  more  on  the  market? 

A.  I  understood  she  was  worth  about  85,0(M). 

The  witness  is,  from  his  own  evidence,  clearly 
iiu'oniiu'tent  to  <>ive  testimony  as  to  the  valne  of  any 
sealiiifj  vessel. 


EVIllENCE — VALUE    OK    VK88EL8. 


2H5 


IK'iirv  F.  Sicwcnl,  citcil  in  tlii'  liritisli  Ar<iiinieiit  "••'•''*• 

(»ii  lu'lialfof  (ircfit  Hritiiin  as  to  the  vnliu' of  tim  Car- 

oli'iKi  and  Ailii,  was  a  sfalin<>-  captain  wlio  had  notliinj^ 

to  do  witli  tilt*  s«'alinji'  hiisint'ss  prior  to  S«'j»ti'nilH'r, 

18S7.     His  only  ex|H'n«'ii<'(*  as  to  the  value  of  vessels 

is  in  connet'tion  with  the  purehase  of  three  sehooners 

in  Nova  Scotia,  the  first  one  of  which  he  hroiiyht  to 

N'ictoria  in  ISSS.     The  followin<>'  from  his  testimony 

apiM'ars  in  the  Argument  on  behalf  of  (treat  Britain;  •»>••  Afr,,  p. 
'  '  !Hi,  line  :i.«. 

A.  I  am  not  acquainted  with  the  ('nroUnu. 

(}.  I>nt  t'roni  yonr  knowk'dgo  of  vessels,  take  a  vessel  in 
1S,S7.  suitable  for  sealing,  and  of  th«'  tonnage  of  .'52  tons  or 
tliereabonts,  would  you  consider  84,000  a  liigh  or  low  vain- 
ati(Mi  f 

A.  I  should  consider  that  a  very  reasonable  valuation, 
consideriiifr  the  experience  1  had  afterwards  in  buying  ves- 
sels. I  will  say  that  in  1.S91  I  paid  83,200  for  a  vessel  about 
thirty  years  old. 

To  which  should  l>e  added: 

<^  What  tonnage  was  she}  H..  n>o. 

A.  Forty. 

The  ('((rolf'iiK  was  Imilt  the  same  vear  as  the  vesselApj). H,p. l'!i. 
he  mentions,   and  was  27..'5(l   tons,  according:'  to  the 
survey  made  of  the  vessel  in  1S.S4. 

His  ij>noraiice  of  tlu'  ('Kro/nta  and  of  market  value 
in  ISSIJ  divests  lii.s  opinion  of  the  sli;ihtest  wei;;Iit. 

His  inexperience  in  purchasiuji'  vessels  and  his 
iji'norance  of  the  Ail((,  for  which  he  made  an  offer  in 
1SS7,  show  that  his  valuation  of  her  is  mere  specula- 
tion. 

John  Sabiston,  cited  in  the  Arjfument  on  l)ehalf  ofn.^  208,  liue 
(treat  Hritain  as  to  the  value  of  the  Curnlrtiii,  was  a  u.^^jn  ii„e 
Nanimo  pilot  who  lU'ver  built  a  sealinji'  vessel,  but  i- 
had  had  "boats"  built  in  1.S7-2  an.l  1S9.'{.  On  the\-"'"'^ 
cost  of  buihlinj;  in  187"i  and  1893  he  l)ases  his  opin- 
ion of  what  it  would  cost  to  tin'ild  a  vessel  like  then..  211,  line 
('(iiolnid  ill  1SS4,  and  he  fixes  it  at  >i.j,()()(>.  That 
lie  is  utterly  incompetent  to  place  a  value  upon  any 
vessel  in  the  vears  when  the  seizures  were  made,  or 


10. 


1 


•_>8(; 


EVlDENl'K — VALUK    oF    VESSKL8. 


I 


at  liny  time  from  IHHO  to  1H!I(),  is  evicK-iit  from   liis 
tt'stimoiiy. 

Williiim  S|fi<>litliolm(',  cited  iis  to  tin*  viiliu'  of  tl>" 

Jliiitiifiiii,  \\!\s  ii   jdimici/iiKiii  sliif)  tnrpihtrr  who  liat. 

K.jifli,  iin«'l)i.,.||  cmployiMl  oil   tlif  vessel   in   miikiiifi'  the  usiinl 

iiiiiiiiiil  reitiiirs.      II«'  lintl  never  been  ii  coiitrjietor  or 

I(..jm;:..  liiii'iiijister  shipwright,  imil  hiid  never  boiifiht  or  soM  ii 

liiir  vessel,      llis   knowhMlii'e  of  the   cost  of  miiteriiil   for 


K..  91): 
.•ii. 


slnn  hui 


hhi 


lii'  \v 


as  coniiiied  to  the  purchase  of  iikis/m 
u..  iKi.-,,  liii..  (',„.  ,„,,.  vessel.  His  valuation  of  the  (hnrtinl  was 
i;..  !«ii,  liiii"  l)ase<l  upon  what  it  would  nist  lo  luiihl  n  vessel  in  the 
jiort  of  N'ictoria  in  lS8(i 
f  suci 


Tl 


le  cNidence  o 


I  an  ine.Nperieuced  man,  ext-i 
so  far  as  the  cost  of  construction  is  concerned,  can  Ik 
of  no  value. 


■;.,   ItHi,    linu 

4(1. 
K.,    Kill,    liii 


Will 


lam   I  uriiel  woi 


rked 


iis  a  journeyman  slup  car- 


no. 


, penter  until  1SS3.  in  that  year  lie  rented  ways  and 
used  them  until  1  ss,'),  huildiii^'  tini  .siiio/l  liifihodts  in 
that  time.  He  then  a<:ain  hecaine  a  journeyman,  and 
remained  so  until  ISST.wheii  he  lioii;;hl  the  "('enter 
Shi](yard."and  continued  thereuntil  the  present  time 


K..    llUi.    lliioaiK 


'.1. 


huililin;^'   in   those   ten   years   tiro   sealin<i'   .schooners 
few    tuji-.s.'"     In  18S!MI()  he  liuilt  the 


(plltc 


Hi" 


schooner   Maiilnllr,  and   in    lSit(l-!U     the  .SV^//V  Tut- 


I' 


rl.       T] 


H-  w  itne 


who  is  undoiihtedlv  the  most  ex- 


perienctMJ  shipw  ri^^iit  swon 


I  on  helialf  of  (ireat  Hrit- 


L'll;     l(ll>." 
liiii"  27 


u..  «ii.  li'"'ain.  was  called  in  tlu'  ca.ses  of  the  CiirolciHi,  Tlionitiiii, 
'  I><il/)liiii,  (iriKf,  AtiiKt  Ht'ch,  and  IT.  /'.  S((i/ininl.  In 
rejiiird  to  all  of  these,  excepting;'  the  ('iii'oIciki,  he 
stated  that  he  was  not  familiar  enoiijih  with  the  ves- 

H.,  Kiy.  sels  to  fix  a  value  up(»n  them. 

In  the  case  of  the  Ciirnhiin,  on  direct  examination, 
he  jiiive  his  opinion  that  "if  she  was  as  <;-ood  as  tliev 
say   she  was,"  he  should  think  she  would  have  been 

K.^  Hi  iiie  worth  about  ><4,(MM).  On  cross-examination  Turpel 
was  asked:  ''From  i/oiir  jhisidkiI  ktioirlrtftfc  of  the 
('((folciKi  (ur  1)011  coiii/ii'fnif  in  i/oitr  own  mind  to  /iliicr  o 


niliir  iijioii 


liii-r  to  which  he  replied 


KVIDENCr, — VALUK   Oh'    VESSELS. 


287 


liwx,  lino 


'I'lic  witiU'ss  iilso  stiitt'il  tliat  tlic  cost  nt'  l»iiil(liii;i'  a"-  "'"• 

vfssi'l  ill  IHSd  mill  1SS7  wnst'i i  ^!7')  to  >;-_*00  a  ton. 

On  the  saino  ratio  tin-  cost  of  Idiildiii;;-  a  vessel  in  San 
Krancisfo,  (le<hu'tin;i'  tlie  <liitv  an<i  expense  ol'  delivery 
to  ilett'i'inine  tlie  cost  ot"  sneii  vessel  delivered  at  Vic- 
toria,would  have  l>een  tVoiii  >*1 ")()  to  >>ll'>  perton.  An  "v,^' 
exainination  of  the  evidence  of  .Matthew  Turner,  the 
San  Francisco  shiplmilder  (which  is  later  reviewed), 
disclo.ses  that  such  a  tijfunj  would  have  het-ii  lar<iely 
in  excess  of  the  actual  cost  in  iSSd  juid  ISHT  at  the 
latter  port.  'I'liis  statement  of  Turi;.  1  ;  hows  conclu- 
sively why  sealing'  schooners  were  not  Iteinji'  iiiiilt  at 
\'i«'tona  in  those  years,  and  deiiionstrat«'s  that  the  cost 
of  hiiildinji'  at  that  port  is  not  even  reinottdy  a  l)asis 
for  calculatiiifi'  what  would  have  heeii  the  cost  to  the 
owners  of  rephu'inji'  the  seized  vess'ds. 

Kichard  Collister,  cited  in  tlu'  Ar;.;uineiit  as  to  the 
value  of  the  Aila,  was  iiis|)ector  of  hulls  at  N'ictoria 
since  18S4,  previous  to  wlii«'h  time  he  had  heeii  a  sliip'*-:,',^'--  ""^ 
carpt'iiter.  InlSS.'{  the  witness  had  worked  as  a  ./"/o-H.,  imi.  lino 
iiijliiiini  on  the  Piiliihiii,  and  in  18S7  hail  surveyed  the 
schooner  Aila  for  the  underwriters  at  San  Francisco, 
although  his  oflicial  duties  were  r  iiilinefl  to  the  inspec- 
tion of  vessels  usiny  steam.     In  his  cross-examination'*-. i;u;i,  line 

'TO 

the  followin<f  apjiears: 

(i>.  Do  you  kuow  anything  about  what  the  cost  of  tlic  Ailn  it..  i:<i;<,  lino 
was  ?  o'*- 

A.  I  have  uo  idea. 

i).  And  in  tixing  the  value,  do  you  estiunite  tin-  co.3t  to 
rebiiihl  her  at  Victoria! 

A.  1  estimated  her  at  what  she  would  sell  for  at  that  time 
in  Victoria. 

Q.  Vou  are  <|uite  familiar  with  the  sales  of  other  vessels! 

A.  I  knew  vessels'  value  at  the  time. 

Q.  How  did  you  learn  thatf 

A.  Because  they  were  in  great  demand. 

if.  Did  you  know  of  the  buying  or  selling  of  any  vessels  in  n.,  i.m,  line 

18.S(i?  5. 

A.  I  did  not. 
Q,  18S7orl8.S8J 
A.  I  knew  iu>thing  about  the  sale  of  vessels. 


288 


KVIDENCE VALUK    OK    VESSELS. 


ii 


K.,  L'lt!, 
6(1. 

!(.,  21(i. 
.".2;L'17 
•1. 


II..  -'1" 
•-'4. 


a..  L'i7, 
ri(i. 


It  is  ck'iir  t'nuii  liis  I'vidciico  tluit  liis  valuiitioii  v  ns 
l)iist'(l  entirely  iiitoii  wliat  it  would  ro.st  to  hn'ilil  ji  ves- 
sel ill  1887.  iiiitl  as  his  experience  in  sliip  l»nil(lin<i', 
even  as  a  jonnu'vnian,  was  previous  to  18S4,  liis  tes- 
timony is  valueless  toi'  the  purpose  tor  whieh  it  was 
producetl. 

'"'"  .lohn  CliU'k  was  a  JDiiniri/iiKiii  Klii/iinif/lif,  who  came 
to  \'ictoria  aliout  1884,  and  who,  since  18SS,  has  lieen 

liiiea  contractor  on  his  own  account,  duriuji'  which  time, 
'"""in  the  winter  of  1891-It2,  h.-  imilt  two  sealin<>- schoon- 
ers of  (;!»  tons  each  for  S8,7r)(>  and  ahout  ^!l,(»(»0, 
respectively,  i  lis  evidence  is  pro(luced  for  the  pur- 
pose of  showiuii'  that  the  in.st  of  Jtiiihl'iiiti  rc.s.srl.s  had 
decreased  at  \'ict(tria  from  1S8(;  to  1S!I2.  Althouj;h 
the  cost  of  l)uildinj;'  at  X'ictoria  in  1S8(!  has  little 
In-ariui;'  upon  the  (pu'stion  of  market  value,  and  the 
cost  in  18!)'i  is  still  more  innnaterial,  the  witness 
estaldishes  his  own  incompt'tenc\-  1»\-  his  testimonv: 

line  {).  Well,  thine  was  no  buildiiif:  ln're  in  1SS(>  of  scalitig 
shii>s.  was  tlii'ie? 

A.  No.  sir. 

Q.  Xor  in  ISSo.' 

A.   No.  sir. 

^i.  Nor  in  1SS4;' 

A.  1  don't  tliink  so. 

ii.  Nor  in  ls,S7  l 

\.  Not  tliat  !  know  of. 
liiu'     ^i-  Von  can  not  tell  anytliinj;  ahoiU  the  cost  of  a  ship  in 
1884,  l.ssr>.  lSS(i.  and  1.SS7 .' 

A.  Oh.  I  had  nothing  to  do  with  t'.'  in  at  that  time. 

It'edirect  examination : 

ii.  In  the  answer  whieh  you  have  given  to  the  last  <|ues 
tion,  have  you  in  mind  sealing:  vessels  or  vessels  of  all  sorts? 

A.  I  merely  answered  the  qnestion  that  I  had  nothing;  to 
do  with  sealing  vessels  at  that  time,     I  was  repairing. 

The  only  value  (d  the  testimonv  of  this  witness, 
is  to  show  thai  <i  Jtiiinici/iiKtit  Kliijurriiihf  i.s  iini»n/nt<iil 
fdf/irc  i.t/Hif  tisliiiiiiii/i  <is  f(i  riiliiis,  (111(1  llidt  one  ciK/df/i'il 
ill  rcjKiir  irorh  hail  little  of  no  /{noirlcdf/c  of  tlic  ((i.tt  of 


niii.iiiifi  (I  rc.s.s) 


I. 


111 

I- 


EVIDENCK — VALUE  OK  VESSELS. 


289 


:.,  sr>(i, 


lini> 


S."i7,   liiu- 


S.">7.   line 


\'.>. 


Siiinui'l  Sea,  in  tlu-  Ar<>iiuu'iit  on  licluilf  of  Groat"'- ■^''ff'ioo, 
IWtain,   termed    "a  slii]»l)nil(ler  of  lar<>e    and  k»ii<>' 
exjH'vience,  and   familiar  with    the  Oiiininl,"  was    a 
slii/i  niriinifcr,  who  l)nilt  two  sdiooners,  "sncli  as  are' 
used  for  sealin<>-,"  in  ASYAV  diid  lsf;s,  and  who  hist  built 
a  vessel  ///  1S7;J.      He  was  sworn  on  behalf  of  (Jreat  ",•.,< '^^"'  ''"" 
Ikitain  as  to  the  value  of  tlie  Oinnnd  in    ISSG.  on 
which   he  did  s(tme  repair  work  in   1S7S   and   18S(t. '* 
The  knowled<>'e  he  possessed  of  the  Oiuranl  outside 
of  the  (|Uesti(»n   of  his  jieneral  ex|ierien('e  is  shown 
by  the  foUowinji-  testimonv: 

Q.  Have  yoii  seen  tlio  0)iirniil  since  you  worked  on  lierM' 
A.  Yes,  I  have  seen   lier  wlioii  she  used  to  <'oiiu'  into 
biirbor. 
(.).  Have  you  been  upon  liorf 
A.  Yes. 

Q.  Have  you  seen  her  since  1880? 
A.  I  can  not  say  I  have  seen  her  since  188('»;  I  nii}>:ht. 
(i.  Are  you  positive  you  saw  lier  between  18S0  and  188flf 
A.  I  think  1  have. 
Q.  Well,  are  you  positive? 

A.  I  can  not  exactly  swear,  but  I  ani  almost  sure. 
i).  Are  you  about  as  sure  that  you  saw  her  since  1880  If 
A.  Yes. 

His  ineomi»etency  is  apparent. 

James  (Jaudin,  sworn  in  relation  to  the  condition 
and  value  of  the  Ail<i,  was  the  master  of  the  vesscd 
and  an  alle<;'ed  personal  claimant  before  the  C'onnnis- 
sion.     He  is  (»nly  cited   in   tlie   Argument   as  to  h\s  .^^ 
Statement  that  the  Ailu  was  the  best  sealinji'  schooner    i'l't. lim'i' ' 
in  the  h.irbor  of  Mctoria  in  that  y«'ar.     His  opinion '*•.')/"''''  """ 
i.-'  to  her  value  does  not  ajipear  to   be   relied   upon. 
i\'o  attei'.ipt  was  made  to  (pialifv  him  as  an  expert  on 
the  value  of  vessels,  ami  liis  evidence  discloses  he  had 
no  knowled<;('  on  which  to  base  an  opiniitn.     As  this 
cruise  on  the  .tilti  was  his  first  and  oidv  experience 
with  sealinj>-  craft,  his  statement  as  to  the  superiority 


of  the 


vessel  possesses  no  weijilit  as  evidence 


H 


e  IS 


clearly  incoMipetent  to  jiive  any  testinuinv  as  to  value. 


m 

f'ii  ■ 


fe: 


n  s- 


•M 


f    ,1    X'. 

■■:[■' 
T 


290 


KVIDKNCK — VALl'K    OF    VKSSELS. 


.loliii  Irviiiji',  a  witness,  who  luid  hci'i)  eii<iii<;('(l  in 
Imviii;^  and  st'lliii;^'  vessels  at  Victoria  since  1<S74,  was 
sworn  in  tlic  case  ot'  the  I liunifoii,  hnt  his  (»jiinion  as 
to  what  it  would  cost  fo  hiiihl  such  a  vessel  in  IH.Sli  is 
not  reterred  to  in  the  Arj^unient  (»n  hehalf  of  (Jreat 
JJritain.  His  ideas  are  so  exa^i'^ierated,  and  his  igno- 
rance ot"  the  vessi'l  so  evident,  that  his  opinion  is  of  no 
value. 

'i'lie  four  remaininji-  witnesses  upon  th(^  vahu;  of 
vessels,  sworn  on  Iteiialf  of  claimants,  and  cited  in  the 
Argument  on  hehalf  of  (Jreat  Britain,  ir  I.  1).  War- 
ren, one  of  the  })ersonal  claimant:  ;u».'  )■  aj^ent  of 
Thomas  H.  Cooper,  the  lar<;est  c!;.  ;  i.:  iore  this 
Ili;.ili  ('onuMission  :  William  ^luiisu,  ''h-u'les  Spring, 
and  .1.  .1.  (iray,  three  of  the  principal  claimants  (who 
for  themselves  or  others  reinrsent  claims,  which,  as 
sulimittcd  in  the  Ar^iument,  ajijirejjate  over  8.')00,(I0(»). 
The  evidence  of  these  witnesses,  who  possess  a  com- 
mon interest  in  enhancinj:'  the  value  of  sealinji' vessels 
at  \  ictoria,  and  especiallv  the  schooners  seized,  must 
be  received  with  the  utmost  caution.  That  all  of 
them  possess  a  ci-rtain  amount  of  experience  as  to  the 
value  of  vessels  is  umpu'stioned,  liut  that  tliev  did, 
under  the  circumstances,  and  in  view  of  the  d<>uitttul 
creijiliilitv  of  the  three  lirst  mentioned  (as  disclosed 
by  portions  of  their  testimony),  ;iive  a  fair,  unliiased 
opinitrn  of  the  value  of  the  vessels,  as  to  which  tli  v 
were  examined,  is  not  proi»i\l»le. 

In  the  repoit  of  the  ctimmittee  appointed  h.  t!a 
board  of  trade,  which  was  so  relied  upv«n  by  (ii'i.t 
Uritain  in  the  (Jeneva  Arbitration,  the  foUowin;.; 
observations  appear,  and  are  (pioted  in  the  cui'.Mtei 
case  of  ( Jreat  Britain: 

fioiiova  Aii>i-  It  will  1)6  lit  (HUH'  ailiiiittetl  l».v  tluise  wiio  are  at  all  fainiliiir 
tratioii .  witli  the  practii't' of  the  courts  in  maritime  ciises  tliat  it  is 
';?  "  ',' ' '  ',  imp""*''''*'''  ^"'  place  miicli  icliaiico  on  tlie opinion  or  evidence 
ulcut  itrit-'*^  sliipowncrs  or  mercliantfl  as  to  tlie  value  of  (troiierty, 
oln,i).  i;ii.   which  1 1  icy  are  seekinji  to  recover.     Shipowners  are  in  the 


'11 


KVIDKXCE VAUUK  OK  VKSSKL8. 


21)1 


habit  of  founding  tlioir  estimate  not 


niariu't  price  of  tlie  ve.ssel  at  tlie  time  of  her  loss,  but 
the  original  cost   price,  anil   often   tat 


amounts  which  they  have  expended  at  dilL., 
out  any  propter  deduction  for  the  wear  and  te; 
wliich  has  been  sustained. 

T] 


on  what  would  lie  tiie 

on 

lie  into   account   the 


erent  times  witli- 
ir  and  damage 


ifS('_  (thscrviitidiis  apjtly  with  ('(piiil   t'orec  to  the 
<»l>iiiioiis  ami  t'vi(K>n((.  of  these  three  clniiiiaiits  ami 


tl 

the  vjihie  (tf  the  vessels  seized. 


le  ajieiit,  \yMrreii,  who  are  relied  ui»oii  in  esti 


inatiiiii' 


It  is  also  to  he  noted  that  William  .Mm 


isie  IS  not 


called  as  a  witness  on  value  in  the  ease  of  aiiv  vessel.. 

but  his  own:   that  Charles  Spriiii.'  stated  that  the  Oit-^'  -^  ^i"'. 


lilK 


IVdl 


(I  was  valued   in  the  sale  of  the  i 


UMii  propertv  of 


W.  Sprin;.-  it  ("o.  at  n-_),-_>(MI  j,nd  the  hatr  at  >^-J,S(lO. 
ainl  that  the  latter  vessid  Wi-s  sold  in  ISSC,  at  the  time  i; 
of  the  dissolution  of  the  partnership  of  (".  Spriny-  ct 
Co.,  for  S1,.S00,  while  he  elaimed     ' 
former  was  in  the  same  vear  >^4.()()( 
eve 


KfJ,   lino 


!«•  value  o 


.f  th 


tl 
»,  modifvinii',  liow- 


r,  Ins  vahiation  l)y  sayin<;-,  "considering'  that  she    .->! 


i;.,  8li.i,   line 


was  w  oi 


tl 


1  every  l)it  of  that  tomcat  that  special  t 
and  that  James  1).  Warren  testified  that  the  li 


line 


ve  ves- 


1111  were  oltcrcc 


sels  for  whi(di  his  principal  makes  cla 
for  sale  at  pnhlic  auction  in  the  fall  of  iSS'i  and  would 
not  hriiij.-  the  face  id'  the  mortiiji^'es,  wlii-li  are  mmdi 
less  than  the  amounts  claimed  as  the  value  (dtl 


i;.,  1IIS7,  line 


se; 


ItV 


in 


Hi 


W 

vinji'  reviewed  the  (pialiticatioiis  aiurtestiiuonv 


en.  who  had  cliarj>('  of  the  ( 'ooper 


le  ves- 
'  liiiis. 


of  the  witnesses  sworn  on  Itehalf  of  the  claimants,  as 
experts.'it  is  jtroposed  to  discuss  those  who  were  swin-ii 
l)y  the  United  States. 

Alexander  .McJA'an,  a  Nova  Scotian  hv  hirtli  audi;.,  i-'n,  liiio 


trom  hoyhood  euiiaii'ed  in  seafaring"'  on  the  Atlantic 
coast,  came  to  N'ictoria  in  the  year  1S,S0,  and  was  for 
two  years  .sailiii"-'  from  that  port  in  dilferent  vessel 
durin<i'  which  time  he  was  mate  ot  tin-  (lovernmeiit 
steamer  connected  with  the  department  of  marine 
and  hslieries.      He  hejian  his  experience  in  sealin;^' in 


li..    lilO,    lino 

;in. 


i;.,  400,    line 


iff: 


It 


Sftl 


Hi!.,,  I 


292 


R.,  419,   Hue 
2i. 


U.,    104.    105, 
400. 


R.,  459.    liuo 
62. 


R.,  265,  line 
6t<. 


H.,  1420,  line 
32. 


K.,  701,  lino 
20;  701, 
line  29; 
890,  line 
34;  7  52, 
line  15; 
1305,  lino 
64. 


EVIDENCE — VALUE   OF   VESSELS. 

1SH2,  .MS  iiiivifi^ator  of  the  srhooiier  San  Dicffo;  .since 
then  ho  has  been  master  of  a  seahn<r  vessel,  except- 
ing- in  the  year  18.^3,  when  he  af^ain  sailed  as  navi- 
o:ator  on  the  San  ])ief/o. 

lie  became  a  member,  in  1SS4,  of  the  firm  of  C 
Sprinji'  &  Co.,  which  was  enjia<>e(l  in  tra(Un<i"  on  the 
west  coast  of  Vancouver  Island,  and  which  also  owned 
.several  sealiii}''  vessels,  retainin<>'  his  connection  with 
that  firm  until  its  di.ssolution  in  hecember,  1886.  He 
testified  that  it  had  been  a  part  of  his  business  to  keep 
jxisted  a.s  to  the  sales  and  transfers  of  sealing-  vessels 
on  the  Pacific  ('oast,  and  showed  his  familiarity  with 
the  market  at  Victoria  bv  testifviu"-  as  to  the  niim- 
ber  of  sales  which  occurred  in  188(1  to  his  personal 
knowledge,  and  which  have  already  been  reviewed. 
His  familiarity  with  the  sealing-  vessels  which  were  at 
the  ports  of  \  ictoria  and  San  Francisco  in  the  years 
188;'),  1880,  and  1887,  is  shown  by  an  examination  of 
his  testimony,  in  which  he  gave  the  tonnage  of  the 
vessels  and  the  years  in  which  thev  were  engaged  in 
sealing.  Besides  his  experience  in  Victcu-ia,  Captain 
^Mclican  was  employed  i)y  prospective  purchasers  to 
inspect  vessels  which  were  offered  for  sale  at  San 
Francisco. 

The  witness  Bragg  stated  that  ('apt.  Alexander 
^IcLean  and  liis  brotiier  were  the  two  most  experi- 
enced men  in  the  sealing  business  at  \'ictoria  in 
1886,  and  F.  ('.  Baker,  a  claimant  before  the  Com- 
mission, said  that  Daniel  McFean  ''and  Alexander 
McLean  at  Ihat  time  (188!))  and  previously  were  con- 
sidered the  men  best  posted  in  that  l)usiness."  Every 
effort  was  made  on  the  part  of  the  claimants  to  shake 
Captain  McLean's  te  ^iuony  by  rigid  cross-examina- 
tion, and  to  destroy  its  i  ifect  by  rel)utting  evidence, 
but  in  no  .single  in.stance  do  we  find,  in  an  examina- 
tion of  tlie  entire  Record,  that  the  attempts  were  suc- 
cessful; in  fact,  in  many  instances  where  witnesses 
were  sworn  for  tiie  ])urpose  of  «'ontradicting  him, 


=  ill 


EVIUENCK VAMIE    OK    VESSELS. 

(•ntss-exiniiiuiition  hroujilit  out  a  full  corrohoration  of 
the  testimony  wliicli  lie  •■•avc.  It  is  to  be  noted  that  i." 
Captain  McLean  was  jmrt  owner  of  the  Oiuranl  i\nd 
FaroKiifc,  two  vessels  for  which  claims  are  made 
liefore  the  High  Commission.  It  is  asserted  hv  the 
United  States  that  this  witness  is  shown  by  hi.s 
evidence,  and  h\  the  evideiuxi  of  every  witness  wl 


293 


m\   line 


:iO. 


own 


lO 


was  sworn  for  the  purpose  of  rebuttin<i'  his  testimony, 
to  possess  more  experience  and  (pialiHcations  to  be 
an  ex})ert  as  to  the  value  of  vessels  at  \'ictoria  in  188(! 
and  1SS7  than  any  witness  which  appeared  bef<»re 
the  Commissioners. 


CJharles  E.  Ravnor,  who  commenced  1 


m  Si 


US  experience 


nlin<>-  from  Pacific  jiorts  in  the  year  1S71,  and 
who  became  master  of  a  vessel  in  tlu^'year  iSTf)  and 
i>f  a  seulin<r  vessel  in  the  year  188(!,  showed  l)y  his 
testimony  familiarity  with  the  sealing  fleet  at  San 


K.,  192,   lino 

H. 


Francisco  and  knowledye  of  the  market 


price  of  ves- 


H2;503,line 
ly. 


sels  in  that  port.     His  entire  experience  as  to  then.,  493,  line 
market  for  sealing  craft  is  confined  to  the  ports  of  San 
Francisco  and  Seattle,  and  his  testimony  in  relation 
to  the  valuation  of  vessels  is  based  ui»on  that  experi- 

le  construction  of  K..  '92,  line 


ence.     In  1887  he  had  char<>e  of  tl 

the  Adir  I.  Ahfcr  at  Seattle,  purchasinji-  the  material 

md  superintendin<i-  the  work.     In  188!)  he  inspected 


'.1. 


the  A(t((  on  behalf  of  James  C.  Nixon,  wiio  lioujiht  w.. '.219,  line 
the  vessel  under  his  advice  when  she  was  sold  at  I'oi't,^ 
Townsend.     In  I88n  Ca])tain  Kaynor  was  seized  on  "io 
the  Sail  Dirffo  and  taken  to  IJnalaska  ami  Sitka.     He  i>'..  i247,  line 


33. 
1{.,   194,   line 


as  aj^ain  seized  on  the  A/lie  I.  Alf/rr  in  1887  and 
taken  to  the  same  })orts.  His  testimony  as  to  the 
value  of  the  vessels  seized  in  both  tl 


14. 


lese  years  is  o 


peculiar  importance  in  that  he  examined  them  aftrr 


leir   seizure, 


aiK 


1  C(»uld  testify  ])articularly  as  M 
their  condition.  That  Ijis  valuation  of  these  vessels 
is  based  entirely  on  experience  in  American  markets 
does  not  deprive  it  of  the  weight  to  which  it  is  enti- 
tled, as  it  is  merely  a  (juestion  of  addition  of  the 


If: -I 


294 


KVIDENCK — VALL'E   OF   VESSELS. 


!i'     i 


K.,  4(1^, 

line 

ti:!. 

]{.,    tlHl, 

liiK 

U.,   17(1, 

lilK 

18. 

K..    I(l!l, 

liiii 

1{.,  47!t. 

liiii 

4(1. 

!{.,  4(;<i, 

liiK 

'21. 

U.,  478, 

Mm 

.->3. 

K.,   KiH, 

Hill- 

5(1. 

K..   17(1. 
27. 

K..    477, 
(i.j. 


liiH 


III). 


R.,  .-);!0, 

lilK' 

n.,  .-.!'!•, 

m. 

H.,   ->'2'J, 

08. 

line 
line 

!{.,   .-.L'9, 

line 

iVJ. 

eiistoiii  (lutifs  iiiid  cost  of  tlcliverv  in  order  to  roicli 
ii  projxT  viiliiiitioii  ill  the  port  of  \  ictoria. 

A.  |{.  Alexiiiuler,  who  siiu-e  lcS,ss  had  l)eeii  eiii- 
jdoytMl  l»y  tlie  I'liited  States  Fisli  Coiiiiiiissioii  on  the 
Pacific  ( 'oast,  and  previous  to  w  liich  time  liad  resided 
at  ( Jloiicester,  Mass.,  since  the  year  1S64,  was  swoiii 
on  lu'lialf  of  the  I'liited  States  in  relation  to  the  vahie 
of  the  ('(iidlciiii,  wliich  lie  had  seen  on  the  beach  at 
Unahiska  in  the  siiniiner  of  1S8S.  Mr.  Al  •caiKh.T 
(hiring  his  resicU-nce  at  (ihmcester  had  l)een  enga<ie(l 
in  the  fislieries,  in  .saihiiakinj;-,  and  in  assistin<i'  liis 
father,  who  was  a  siii]»I)iiil(h'r  of  (  Moiicester.  Iletes- 
ti(ie(l  tliat  lie  knew  of  the  cost  of  construction  of 
vess(ds  at  that  ]iort,  and  on  cominy  to  tlie  I'aciiic 
("oast  in  ISSS  he  e.xaniined  die  Hshinji'  vessels  there 
einploved  (which  are  similar  to  those  used  in  seal- 
ing), their  ri^';iin;:'  and  construction,  makiiij;'  notes  at 
the  time  for  general  comparison  with  the  vessels  on 
the  North  Atlantic;  that  his  iiivestijiJitions  covered  the 
aji'e,  ji'eiieral  condition,  riji',  material,  and  co.st  of  fish- 
inji'  and  sealin<i'  c-raft,  and  that  his  rea.sons  for  such 
examination  were  his  own  interest  in  such  matters 
and  the  fact  that  he  !iii;;lit  l>e  called  upon  to  jiive 
information  u]ioii  tliis  suhject  to  the  Fish  Commission. 
lie  examine(l  the  vesscd  as  t(»  which  he  testified  witii 
care,  and  detailed  her  con.struclion  and  condition  at 
that  time. 

From  iiis  experience,  which  was  t'ully  Itroujiht  out 
in  his  cross-examination,  it  is  plain  that  tiie  witness 
was  com|ietent  to  j;ive  testimony  as  to  the  value  of 
the  ('((rolcnii. 

F.  1'.  .Miner  was  sworn  as  a  witness  on  Itehalf  of 
the  I'nited  States  as  to  the  value  of  the  ('(UoliHd. 
lie  had  heeii  enjia>;'ed  since  ISTa  upon  tishinji'  and 
liiintinji'  vc'ssel.s,  and  had  saile(l  from  the  ports  of  San 
Francisco,  Yokohama,  \  ictoria,  and  Seattle.  IiilS.S,') 
he  Itecame  mj;rver  of  the  Mritish  s«diooner  I'^iclojic, 
and  sine"  that  time  up  to  ISO.")  had   heeii  a  master  of 


KVIDENCK — VALUK    OK    \  KSSKLS. 


21J5 


sciiliii"'  vessels,      lie  stilted  that  lie  knew  every  vessels.  •">:!",  li 
tliiit  wiis  en<>iijie(l   in   seiilin<>-  in  lSS(i  and  ISST,  and 
that  two-thirds  of  them  were  ori;iiiiallv  l)uilt  in  .San 


Frai 


H'lSCO. 


That  he  was  familiar  with  the  market  at 


V.V2.    lino 


San  Franeisco  is  shown  l)y  his  testininnv,  and  that  inU..  53o,  lino 
iiiviii<i'  an  opinion  as  to  the  valne  of  the  Curolei/d  I 


K'R., 
ynided    cliieHv    1)V    his    knowledge   of   market  ,."*■. 


lino 


A  allies  at  that  port.      He  testified  also  (•onceriiin;^-  th 
hnildiii"'  of  vessels  in  California,  and  showe»l  an  inti-' 


U..   -I'M,  line 


503,   line 


18. 


HI 
t'l 


lite  knowledii'e  of  tlu'ir  construetion,  mat,  rial,   audi?..  isC",  line 

.  '^  38. 

ist. 

In  ji'ivinji'  evidence  as  to  the  value  of  a  vessel  on 
the  market  in  1S8(!  and  18H7,  the  opinion  of  Captain 
Miner  is  of  a  special  importance  hecaiise  of  his  evi- 
dent familiarity  and  lonj^-  experience  with  vessels  of 
the  class  under  consideration,  and  because  of  the 
clearness  with  which  he  showed  upon  what  <>Toniids  he  ^,  -.^^  1;,,^, 
l)ased  his  statements.  His  testimoiiv  in  regard  to  the  40. 
Citroli-iHi  rested  upon  an  examination  which  he  made 
of  her  in  1  SSi)  at  I'liidaska.  lie  descrilied  her  model, 
material,  and  construction,  and  explained  tiilly  how 
she  diifered  from  marketable  vessels  in  1S8(!. 

It  appe;irs  from  the  foreiioin<i'  review  that  "Jl  wit- 
trn  on  helialf  of  (Jreat   Mritain  as  to 


I!.,r)37,line8. 


iiesses  were  sw« 


he  valne  o 


f  11 


U'  vessels  sei 


zetl.      ( )iu'  of  tl 


lese  was  a 


master  shipwright,  one  the  manajicr  of  a  steamship 
company,  one  a  pilot,  ami  to/  joKii/rf/iinii  sliiji  ((iriini- 
/r/'.s.  These  thirteen  witnesses  all  testilied  as  to 
values  upon  tlio  hasis  of  what  it  w(»uld  rosf  to  hiiilil 
vessels  at  Victoria  in  18HG  and  1SS7.  The  remain- 
ini>'  witnesses  are  a  sealinj;-  captain,  who  had  no  ex- 
perience ill  the  Imsiness  prior  to  .September,  iSST: 
an  inspector  of  hulls  of  steam  vessels  at  \'ictoria,  the 
a;.;('nt  of  the  larji'est  claimant;  three  of  the  claimants 
liefore  the  Commission;  and  an  alle<;ed  claimant. 
These  seven  testified  as  to  the  value  of   vessels  in 


tl 


lose    years. 


T 


le    reniaininj;-    witness    is    a    ship- 


builder (William  Turjiel),  ami  the  most  experienced 


I' 


!»i;  ■' 


I^[i 

il  '1^ 

^ 

1 

If- 

j' 

Ii; 


296  EVIDENCE — VALUE   OF    VESSELS. 

of  tilt'  witnesses  sworn  on  behalf  of  Great  liritain, 
bnt  he  fails  to  place  a  value  f>n  any  vessel  from  his 
own  knowledjie. 

The  witnesses  sworn  t»n  hehalf  of  the  United  States 
are  tonr,  thi'ee  of  them  the  m(»st  exjjerienced  sealinj^ 
captains  on  the  Pacific  Coast,  who  fnan  their  com- 
prehensive knowled<>'c  of  the  sealin<»'  business  were 
fully  competent  t«»  fix  a  value  upon  the  schooners 
seized.  The  fourth  witness  was  an  euipl(»yee  t>f  the 
United  States  Fish  Commission,  who  had  been  familiar 
with  the  class  of  vessels  used  in  sealinj>'  from  bov- 
hood,  anil  with  those  on  the  Pacific  for  the  jjast  ten 
years.  All  of  these  witnesses  j^ive  testimony  as  to 
the  iiKirlii't  raliic  of  the  seized  vessels. 

The  third  class  of  evidence  submitted  to  the  Coiii- 
mi.ssioners,  but  which  can  only  be  relied  upon  in 
case  it  is  deemed  a  market  price  has  not  been  proved, 
is  the  cost  of  constructinji'  vessels  of  a  similar  class. 
It  is  apparent,  from  a  review  of  the  summarized  evi- 
dence of  witnesses  sworn  on  behalf  of  the  claimants 
as  experts,  that  from  the  year  18.S3  to  18S1),  inclusive, 
there  were  no  vessels  l)uilt  at  Victitria. 

The  oid\-  evidence  which  was  submitted  under  this 
head  on  tlie  jiart  of  the  claimants,  exceptinj^-  in  the 
cases  of  seized  vessels,  related  to  the  years  18!)(>  and 
iN'.d,  when  it  a]»pears  that  increased  facilities  for  the 
transportatiitn  of  the  nece.ssarv  materials  from  the  East 
had  made  it  possible  to  build  vessels  at  Victoria  in 
competition  with  the  hnjie  sliipyards  of  San  Francisco. 
The  vessels  built  at  Victoria 'in  ls;»()  and  1S!»1,  of 
which  evidence  was  <iiven,  were  the  following: 


I8!)(>. 


E.,  167.  Mitij  Jlcllr  (o?  tons)  was  built  by  William  'I'urpel 

for  8(;,r»0(>. 
R.,  168  Satlh'  TiirprI  (5(>  tons)  was  built  l)v  the  same  man 

for  810,500. 


If    ':■ 


EVIDKNCE — VALUE   OK   VEt<SEL8. 


2!J7 


ti^. 


D'kiiki  (").'}  to  ;■)(!  tons)  wiis  hiiilt  Jiiul  launclu'd  in  K..  lit;,  line 
this  vcar.     Jlcr  hull,  spars,  etc.,  w  itiiout  rii-iiin"',  sails,    ■'^' 
or  tuniisiiinys,  were  suiipncd  l»v  Orhnido  Warner  for 

S2,8(H). 

18!)1. 

Clxirlotfr  Cox  (83  tons)  was  l)nill  and  latniclit'd  ini;.,  vm\.  line 
this  year.     Her  hull,  sMurs,  etc.,  without  K-,\\m\  tur-     '-• 
nishinos,  rij^'j-'in-.-,  or  sails,  wore  supplied  l»y  Orlando,.    .,,„,   ,;„„ 
Warner   for   S;-,,(;()().      J^.  i,s)iinated   the   Iwdance   of    :ii' 
her  cost  at  82,800. 

Victoria  ((!'J  tons)  was  Imilt,  aecordinji'  to  Captain  i>'-,  i"'!". 
Hiewerd,  at  a  eost  of  over  sH.uoo,     McI)onald  and 
Clark  were  the  eontraetors.     ( 'lark,  who  was  a  witness  i.'.,  \'>'.k 
before  the  Connni.ssion  on  liehalf  of  (ireat  Hritain, 
stated  that  the  ])riee  which  thev  received  for  the  con-l.'..  -'kj,  lino 
struction  was  S8,7')().  '"'• 

J'Jiitniirise  ((i|»  tons)  was  Ituilt  l)v  Clark  at  a  cost'*'-  -"'.  i"'o 
of>i9,000. 

Besides  the.se  vessels  there  is  no  testimony  produce<l 
I  behalf  of  Great  Hritain  in  relation  to  the  cost  of 
buildino'  vessels  at  Victoria,  exceptinji'  the  three 
"Cooper"  vessels,  which  were  launched  in  18S1  and 
1882.  There  is  some  evidence  before  the  Commis- 
sioners as  to  the  cost  per  ton  for  buildinji'  at  \'i«'toria 
in  the  years  188(;  and  18S7,  but  in  view  of  the  fact 
that  no  vessels  were  constructed  this  testimony  must 
have  been  mere  speculation  on  the  part  of  the  wit- 
nesses who  gave  it.  it  is  contended  on  tlh  -  part  of  the 
United  States  that  there  is  no  evidence  j:. i'seiited  on 
the  part  of  Great  Hritain  as  to  the  con.struction  of 
sealin<r  vessels  at\'ictoria  which  has  the  least  bearing' 
upon  the  market  value  of  vessels  at  that  port  in  the 
years  188G  and  1887. 

As  the  cost  of  building  vessels,  in  the  absence  of 

evidence  establishing  a  market  price,  may  be  entered 

upon  in  determining  value,  it  is  considered  advi.sable 

to  fully  discuss  the  evidence,  although  it  is  claimed  by 

B  S 38 


oi 


p:m 


298 


1{..  U\X6, 
20. 

K.,  11W7. 
H.,  IfiW, 


K.,  \-l», 

7. 
U..  niH, 

30. 
K.,  171H, 

;u. 

K.,  171X. 
•M. 

U..  1718. 

40. 
!{.,  1719. 

41'. 
H.,  1719, 


KVIDENCK — VALL'K    OF    VESSELS. 

tlif  rnitcd  Stiitos  that  ii  iiunket  jirii-e  nt  Victoria  lias 
ln'eii  .xliowii.  TIk-  principal  witness  and  expert  on  the 
costot'huildiiijjvcs.sc'lsnii  the  PaciHc( 'oast  in  \HHi>  and 
1HS7  was  Mattlu'W  'I'nrncr.  lie  came  to  San  Fran- 
cisco in  !><;')(>,  and,  liaviiio'  pnrcliascd  a  .M-liooncr  in 
iSJjii,  coinnieiiccd  a  coastin<i'  trade.  Tntil  1871  lie 
continueil  liis  occnpation  as  a  master  of  a  vessel, 
ownini;'  at  the  same  time  two  other  vessels.  In  IS71 
he  estal)lished  a  shipvard  at  San  Francisco,  havinjij' 
leariuMJ  the  tra<le  of  shi]»l»iiildin;i'  at  intervals  Ix'tween 
lsr)3  and  1S71.  From  that  time  until  the  present 
(1H!I7)  he  has  con.strncted  ISH  vessels  (.f  from  2(»  to 
over  4<>()  tonslairden.  His  shipyard  is  the  best  known 
on  the  l'aciti«"  ("oast,  and  exceptinj^'  one  at  I'ort 
Hlakeley,  in  the  State  of  AVashinjitoii,  the  largest.  His 
kii(»wled<ie  and  experience  make  him  an  expert  of  the 
lii<ihest  class. 

During'  the  i)ast  Hfteeii  or  twenty  years  he  has  con- 
structed numerous  sealino-  schooners,  and  other  craft, 
suitable  for  seal  hunting'.     In  IHSf)  he  huilt  six  ves- 

lincsels  of  this  cla.ss,  and  in  1HS(I,  five:  all  of  these  were 
built  and  furnished  complete  "ready  for  sea."  Turner 
stated  that  in  those  yeiirs  a  vessel  of  30  tons  cost 
api)roximately  Sllf)  a  ton  to  build,  and  that  a  7(Mou 

line  vessel  cost  about  Sj»0  a  ton.  In  his  cross-examination 
he  was  (piestioned  as  to  vessels  which  he  had  coii- 


Ilis 


ev 


ideiic 


e    can 


>e     summarize( 


IS 


structed 
follows: 

J-:jii))i<i  (42  tons),  built  in  1885  f(»r  8:),8()0. 

San  Jo.sc  (H.  al  t<»u.s),  built  in  188(1  for  ^A.-JOO. 

J'cdil  (83  tons),  built  the  .same  year  for  s<,i,r,0(». 

Mtii  WnliHc  (S3  tons),  l)uilt  at  the  same  time  at  a 

cost  of  >s9,(l(K». 
""'■     L(irin(i  (08  tons),  buiU  in  1880  for  ^7,232. 
line      '\^\^^,  witness  explained  that  in  the  case  of  the  Thnnia 
Hue  she  was  lini.shed  as  a  yacht,  witli  awning,  etc.,  at  an 

extra  cost  of  81,000;  and  he  also  explained  that  the 


line 
line 
line 
line 


KVIDKNCE VALUK    OF    VKS8F.r,S. 


•Jll!l 


Luvhid  Iiiiil  extni  f'liniisliiiijis,  wliirli  iiicrt'ilscil  licr 
cost  Ih'VoikI  the  iisiifil  \)v\vy  per  ton  tor  m  vcssf^l.  It 
.slionld  mIso  !)('  noted  in  tliis  connt'ctioii  tlint  Oiiptnin  i<.,  kw,  nno 
McljCiin,  whose  experienee  liiis  jilreiuK'  been  (lis-  '-'*• 
iMissi'd,  fixed  the  nvenijic  price  per  ton  For  n  new 
soalinji'  vessel,  "ready  tor  sea"  in  the  port  of  San 
Francisco,  at  SI 00. 

In  connection  with  the  cost  of  Ituildin;^'  sealln;; '>'•,"«"',  Hue 
vessels,  and  in  order  to  make  such  evidence  iuat(frial 
in  deterniininji'  market  value,  it  is  necessarv  to  con- 
sider the  ai\niial  depnu-iation  or  "wear  and  tear"  of 
vess(ds,  which  also  becomes  important  in  determiniuj'" 
the  value  of  vessels  which  lia<l  partiallv  completed 
their  voyaj^'es.  'i'urner  stated  that,  ivitli  (inliiitni) 
care  nml  ir/Ktirs,  a  vessel  depreciates  al)out  10  per 
cent  per  annum.  His  reasoninji'  uixm  this  (piestion  n.  khu. 
of  de|)reciation  is  extremely  cli-ar  and  full. 

(.'aptaiu  Anderson,  whose  expei-ieiice   has  alreadv  n,  nno,  lino 
been  fully  discussed,  stated  that  the  annual  deprecia-    ^'' 
tion  is  about  10  per  cent,  aihlinj^-  that  there  is  a  .litl'er- 
ence  of  opinion  as  to  the  first  year  after  buildinji';   that 
some  consider  the  wear  and  tear  at  10  per  cent,  while 
others  placid  it  at  l»ut  5;   and  that  he  would  consider  K.,  itiki,  iihb 
that  a  vessel   twenty  years  old,  kept  in  a   seaworthy    "^^ 
conilition   by  repairs  or  j)artial  rebuildinj;',  would  l»e 
worth  api)roximately  40  per  cent  of  her  ori;:>inal  cost. 
Ill  the  examination  of  Captain   Siewerd,  a  witness 
sworn   on   behalf   of  Groat     Britain,   the    following.;' 
a|)poars: 

The  Conuiiissioneron  the  uiwt  of  the  Unite<l  States:  i  .  i-'ii,  line 

'  53. 

ii.  What  would  the  ordinary  wear  and  tear  be? 

A.  The  ordinary  wear  and  tear  would  be  10  per  cent. 
The  Connnissioner  on  the  part  of  Her  Majesty: 

(i.  Do  you  deduct  10  per  ceut  for  wear  and  tear  on  a  vessel  K.,  121 1,  line 
two  years  old?  t>l. 

A.  It  is  the  custom  to  allow  tliat  on  tsie  .iverage  every 
year  as  we  go  along. 

The  t'oUowiu}.;'  appears  in  the  examination  of  J.  D. 


ml 

m 
lift 


300 


EVIDENCE — VALUE    OF    VESSELS. 


1{.,    !I15, 
67. 


V>2. 
R.,  IG',15, 
20. 


K.,  Ui'.yj, 
25. 

li.,  um, 

4. 


WaiTon,  iiffciit  of  the  piiucipal  cliiiiiiinit  lu't'iirc  the 
Iliji'li  ('oniiiiis.siom'rs: 

Hy  tile  <'oiiimis.si(»iH'r  on  tlio  piirt  of  tlic   I'liiti'd 
Stiiti's: 

liuf  ^i'  ^N  liiit  would  it  ettst  to  rctit  tliis  Thornton  f  I  do  not 
iiit'iiii  tlu'  oiitlit;  liut  you  say  yon  tliorouffldy  relit  every 
luituniii;  liiiw  niucli  did  it  cost  each  year  to  relit — take  the 
Tlioriitoii,  for  instance.' 

A.  Well,  she  would  cost,  oh.  I  should  say 

i).  1  uin  spcakinj;  sinijily  of  the  ve.s.sel  herself,  to  nnike 
;;()od  her  wear  and  tear  .' 

A,  1  think  she  would  take  fully  •'!'1,(MM(  a  year,  one  year 
with  another;  one  year  she  nught  not  take  so  nnudi  atul 
another  a  t;ood  deal  more. 

^).  lio  von  mean  the  wear  and  tear  woidd  be  as  much  as 
that? 

A.  The  runnin;;  {fear  is  a  jj;<iod  deal,  and  the  sail  is  a  jiood 
deal,  aiul  tlu'U  they  have  to  be  thoroufrhly  overhauled  and 
re[»aired.  and  if  they  reipiire  any  caulkiuf;:,  to  ftet  it,  and 
once  in  a  few  years  have  to  ])ut  in  newchallinj;,  and  overhaul 
them. 

Q.  I  )o  you  mean  a  vessel  of  the  si  '  the  Thornton  would 
take  that? 

A.  I  think  she  would  take  fully 

Q.  That  would  represent  the  wear  and  tear,  W(udd  it ' 

A.  Yes;  I  think  she  would  take  about  that.  The  sealing 
business  is  a  pretty  hard  business  ou  these  little  vessels;, 

i'"e      .\[nttlKMV 'riinicr,  In  fiirtluT  flisciissiiio-  tlic  ((iicstion 

line  ot<U'|trcciatioii,  stilted  that  in  liis  opinion  a  vessel  wliirh 

liad   been  lenjitliencd  woidd  decrease  in  value  from 

1 ')  to  2(>  per  cent  per  annum,  and  tliat  a  v«'ssel  wlio.se 

hull   IukI   heen   injm'e<l  hy  relittin<>'  for  steam  woidd 

lepreciate  more  than  the  ammal  rate  cd'  10  j)er  cent. 

'""*  ilis  explanations  us  to  how  a  vessel  woidd  l»e  injured 

liii(l)y  leiio'theninji',  and  how  afiected  l)y  puttinji'  in  steam, 

are  full   ami   explicit.      It  is  asserted   hy  the  United 

Stiites  that  in  any  consideration  (d"  the  cost  (d"  huild- 

ino-  Vessels,  which  may  Ite  deemed  necessary  for  the 

purpr.se  of  determininji'  market  value,  the  (picstion  of 

(h'pre 'iation   must   also   he  taken   into   acc(Uint,  and 

that   ^.uch   vessels  aiiiono'  those   seizeil   as  liad   heen 


EVIDENCK — VALUK   OF    VESSELS. 


801 


k'ii<itli('ii('<l  or  lifted  witli  stciiin  must  Ix'  miIiumI  in  tlu- 
lifilit  ut"  Mr.  Turner's  testimony. 

'I'lie  Tnited  StJites  cliiim  tiiiit  ('mm  tlie  tun-jioinj: 
review  i>i'  tiie  evidenee  sultmitted  in  relation  to  the 
Vidues  of  the  vessels  seized  tor  which  ehiims  are 
ma<U',  the  t'oUowin^'  faets  liave  heeii  estai)iished: 

First.  That  in  tiu'  years  iSSd  iind  1«87  tiiere  was 
a  market  at  N'ictoria  tor  vessels  suital)le  tor  sealin;^'. 
and  therefore  a  market  value  for  vessels  of  that  elass 
in  that  port. 

Si'cond.  That  there  were  no  shi|»var<ls  at  X'ietoria 
at  that  time  which  were  employed  in  the  construction 
of  sealin^i'  .schoonens,  but  to  a  certain  e.xteiit  the  sliiji- 
\vri;ihts  there  were  en^iajied  in  repairin^i'  \-essels  used 
for  sealing'  purjioses. 

Third.  That  the  source  of  supply  for  the  Victoria 
market  in  1SS6  was  S.ni  Francisco,  and  the  market 
price  at  N'ictoiia  was  governed  hy  the  jirices  rulinti' 
at  San  Francisco,  w  itli  the  customs  duties  and  cost  of 
transportation  addeil. 

Fourth.  'I'hat  the  soiu'ce  of  supply  for  the  Victoria 
market  in  1887  was  San  Francisco  and  Nova  Scotia, 
and  that  the  market  price  at  Victoria  was  ooverned 
accordingly. 

Fifth.  That  the  cost  of  l)uil(rm<i'  ves.sels  in  1SH6 
and  1S87  at  Victoria  nuist  )»e  conjectural,  based  on 
no  actual  experience,  and  e.xcessive  of  the  cost  of  ves- 
sels imj)orte(l  from  San  Francisco  or  Nova  Scotia; 
and  that  such  cost  of  buildinj;',  even  if  it  could  be 
established,  would  form  no  basis  u])ou  which  experts 
could  calculate  the  market  value  of  ves.sels  in  those 
years. 

Sixth.  That  shipwriji'hts  en<ia<;ed  in  their  trade  at 
Victoria  in  188(i  and  18S7,  who  pos.sessed  no  kn(twl- 
ed<;e  of  sales  of  ves.sels  at  that  port  (»r  at  the  port  of 
San  Francisco,  and  whose  kuowledne  durin<>'  this 
period  of  the  co.st  of  buildiny  does  not  come  from 


r  I 


I 


302  EVIDENCr, VALUE  OK  VESSELS. 

otliiT  t'xjH'rioiu'c  tlinu  inakiiiii-  repiiirs,  aiv  iiic(iiiij)e- 
tt'iit  to  jiivc  fX|K'rt  testiitiony  as  to  the  value  of  tlio 
scaliiii;'  vessels  in  (jiiestioii. 

Seventh.  That  witnesses  who  in  ,J8S(i  and  1SS7 
wiTc  familiar  with  the  market  of  San  Francisco  and 
the  rulinji'  prices  there,  and  witnesses  who  had  knowl- 
edji'e  of  sah's  and  transfers  of  sealinL;-  vessels  at  Vic- 
toria, are  com|n'tent  to  u'ive  ex|»ert  testinKtny  as  to 
the  value  of  the  vessels  in  (pU'stion. 

I'lijihth.  That  the  sah's  of  sealing  schooners  at  the 
ports  of  Victoria  and  San  Francisco  dnrinii-  the  \'ears 
1S8(!  and  18S7  an-  i)ro]»er  data  for  the  computation 
of  the  market  value  of  vessels  in  those  vears. 

Ninth.  That  the  remoteness  of  Nova  Scotia,  the 
su]ieriority  of  the  vessels  then*  produced  in  material 
and  construction  to  the  schooners  built  on  the  Pacific 
Coast,  and  the  small  nuud)er  procured  from  there  in 
188*1  and  1SS7,  make  the  prices  paid  for  Nova  Scotian 
vessels  deliver«'d  at  \'ictoria  of  hut  little  value  in 
estahlishinu'  the  market  price  of  schooners  a:  the 
latter  port. 

Tenth.  That  the  sales  of  vessels  at  the  port  of  San 
Francisco  form  a  proper  Itasis  tor  the  computation 
of  the  market  value  of  sealinji'  vi'.ssels  at  \'ictoria  in 
the  yt-ars  18S(!  and  1SS7:  and  in  the  absence  of  proof 
of  an  actual  market  value,  the  cost  of  l)uildin<:'  in  the 
former  port. 

Fleventh.  That  the  nuud)er  of  vessels,  sales,  and 
transfers  at  the  port  of  San  Franci.sco  in  18M(!  and 
1.S77  is  evidence  of  the  suppl\-  which  existeil  tor 
uieetiu;^'  the  tli'iuands  of  the  N'ictoria  market. 

It  is  ])roposed  at  this  point  in  the  Ar<i'ument,  and  m 
comiection  with  the  preceilinji- review  of  the  evidence 
and  witnesses  oroduceil  i)\-  both  hin-h  contractini'' 
j)arties,  to  brietly  examines  the  claims  made  for  vessels 
seized  by  the  Uniteil  States,  and  f(»r  the  value  of  which 
it  is  asserted  the  I'nitiMl  States  have  become  liabh). 
In  all  of  the  tostiniony  as  to  value,  it  is  claiuKMl  that 


]:f. 


EVIUKNOE VALli:    OF    VESSELS.  3{)'6 

wear  iind  tcnr  wliicli  the  vt'ssol  Iwid  sutlV'ivd  iit  tlu' 
tinu'  ofsi'i/Aiiv  .'iiust  he  tJikcii  iiitd  (•onsidfrjiticii. 

CAKOLENA. 

Tlic    *'(imlrtiii,   seized    the    1st    Aii,i;iist,    18S(i,    wiisApp.   H,  -J'x 
l)llilt  iit  Sjiii  diiii.i.  I'liitcd  Stiiti's,  ;it  ;i  d;iti-  liiH'ci't;iiii. 
Sill!  wjis  rcji'isten'd  ;»t  N'ictoriii  in   ISTd.     Tlu'  xcsscl 
Wiis  ");"). S  I'cct  ill  Ic'iij^i!),  Kl.f)  lu'iiiii,  iiiid  a.A  dcptli  of 
hold,  with  a  yross  and.  rcnistcred  tonna^ii'  <tt"  27..'5(!. '^•./'"f'.  ''"i- 
She  was  constnieted  of  soft  wood,  and  fastened  with    ''''' 
hlock    iron,    not    iialvanized.     Tlu'   wood    used    was^.,  J78   lin.. 
()re;^on  pine  or  Doiiylas  fir.  *<• 

Mr.  Alexander,  who  saw  the  (\tnihii<t  in  18S8,  stated R-,  i"o,  lim' 
that  she  had  "jiriniitive  lines  as  eonipared  with  niod-u.^Vs,  lin.. 
eni   hnild,"  and   (hat   she   was  of   an  "old-fashioned    "^• 
tyiH',"  "full  how, "and  "had  hut  very  little  dead  rise," 
and  that  "she  hail  very  full  lines  from  l»ow  to  aft  all 
over. 

Captain  Miiiei  also  said  of  her  that  "she  was  a  verv  1>'-.  5:n,  linf 
old  stylt — that  is,  in  model."  '      '^• 

.lames  1).  \\'an'en  spoke  of  her  as  a  ".small-sized" "•■  --"■'.  lim' 
vessel   of    sliai-]»  huild,    l)ut  added   that   he   did   not    '^' 
examine  her  after  she  was  re])nilt. 

Of  the  witiu's.ses  sworn  on  helialf  of  Great  Ih-itain 
as  to  the  \alue  of  the  ('(irohiid,  nix  Ikisc  tlirir  ojiiiiioit 
iij)(ii/  irlnif  if  iroiild  cost  to  hiiild  <i  irssci  ncir  in  I'irtarid 
(it  that  fiiiK'.  Their  occupation  and  the  valuations 
they  <iive  are  as  follows: 

dolin  Kohinson.  jouriu'ymanslilp  carpenter,  s-,,()()().  R-  i''». 

Walter  Walker,  joiiriievman  ship  carneiiter,  s4  QlH). '>.i"'<,li'i<'4- 


Alexander    Watsoi 


ahout   84, ()()() ;    and   is  .so  <  i 
hehalf  of  (ireat  Hritain. 
The  last  witness,  on  1 
of  the  size  of  the  Carolr 

'-;3,37r). 


,00 
1,    |ouriieyman    siiip    carpenter,  i>'..  iss,  ih, 


ted   in  the  Arjiument  on 


)(!■;■  corrected  as  to  his  idea""  '!•".  i""' 


cliaii<;i'(l  Ins  va 


luati 


on  to 


K.,  l!Ki.   lini' 


Orlando    AVarner, 
s;j,8()(l  or  S4,00(». 


(turnevman    shii)     carni'iiter, 'J.,  lit-,  i 

1  I  '         IW 


W. 


H' 


* 

il       i 


304 


F.VIUENCE VALL'K    OF    VES.><ELS. 


.loliii  SaUistoii,  NaHfiiiHo  pilot,  >^r»,0()0. 
i{..i!t4,   liue      >^   McC.  Siiiitli,  iiiiister  sliipwrinlit,  who  never  saw 
the  vessel.  InKit/iiicil  slie  was  worth  about  >^3,(100  nr 

liesides  the  t'orejji'oiiiy  witnesses,  William  'rur])el, 
proprietor  of  a   shipyard  iit  ^'i(•toria,  placed  a  value 

R.  H!!).  of  alxiut   >>4, 0(1(1  upon  the  ('(iihIciki,   "if  she  was  as 

^•ond  as  they  say  slie  was." 

'^■J2'""''  ''""  .liiMies  1).  Warrt-n,  agent  of  the  principal  claimant 
itet'ore  the  ( 'onnuission,  stated  thiit  hi-  would  consider 
the  vessel  worth  ><4,<H)(),  althoniih  he  did  not  examine 
her  after  she  was  lenjithened. 

K., -Ml, line 7.  Charles  Sprin<i',  also  a  lar;.;e  claimant  before  the 
C'liumission,  placed  her  value  for  sittHiif)  ihiijxiscs  In 
,'(ir  iiinicr  \n  tiie  nei;^hborhood  of  ><3,S0(>  or  >^4.()<t(). 

William  Munsie,  the  allejivil  owiter  of  the  vessel, 
stated  that  she  was  valued  in  ISS,'),  when  he  ))ecame 
interested  in  her,  at  alxiut  >;3,sn(),  but  that  he  would 
"not  be  i»ositive." 

Acciirdini:-  to  the  considerations  expressed  in  the 
various  Itills  of  sale  to  and  morti;'aj:es  t'rom  Munsie, 
the  value  of  the  ('arnliiid  at  that  time  was  >;2, '•()(). 

''••J"-*'""M'atrick  Hickey.  who  was  half  owner  of  the  vessel 
when  she  was  sold  in  18''^.''»,  stated  that  he  received 
>>1,(M)()  as  his  share  of  the  i)urchase  price,  and  that 
Captain  I'npihart,  wh(»  made  the  sale,  toM  him  that 
he  had  s(.ld  the  vessel  for  ^2,000. 

li.,  209,  liue  As  corruboratiiiu  of  the  last  valuation,  it  appears 
that  the  len^itlieninji'  of  the  vessel  renewed  al)out 
two-thinls  of  her  hull,  and  that  such  repairs  cost 
>^I)()i),  At  the  same  rate,  although  repair  work  was 
more  expensive  than  tlu'  coustruclion  of  u  new  vessel, 
the  entire  hull  of  the  ('firnhiKi  could  have  l)eeu 
replaceil  new  for  vSl,2(H>. 

t  )rlaiido  Warner,  who  liuilt  the  hull  of  the  Cluir- 
liittr  Cur,  I'stiiuated   that   the  cost  of  the  outfit  would 

w„  wai,  line  ij^.  ,„n..third  of  the  cost  of  the  hull;   and  the  same 


K.,!<7. 


l(.,ll!l. 


n..  I'CMi,   lin 
:u. 


m 

1 


EVIDENCE — VALUE   OF   VESSELS. 


305 


ratio  is  friven  by  the  witness  Cavin  ii»  tlie  case  of  the 
Dolphin. 

H"  correct  in  their  opinions,  the  Curohim  was  wortli 
certainly  not  over  >il,(iOO  or  >^1,70()  new. 

'V\\v  witnesses  sworn  on  oehaH"  of  the  United  States 
expressed  tiieir  vahiation  of  tiie  vessel  entirely  upon 
the  prices  ruling'  in  the  Victoria  and  San  Francisco 
markets  at  that  time. 

Alexander  .Mci^ean,  who  spoke  from  knowh'd^^e  of 
the  N'ictoria  market,  stated  that  the  Cuioliint  \\\\c\i  lieRv  ^14.  line 
saw  her  in  ISS")  was  prohahh'  worth  !Sl,70(l. 

A.  \\.  Alexander,   hasin^-  his  opinion  upnn   an  ex- 
amination of  the  vessel  in  1S8S,  placed  the  \aliiatiou  'yit. '  ' 
at  hetween  81,SU(»  and  s2,0(M),  not  excecclin;:-  >^-_\tMI(). 

Charles   K.    IJjiynor,    whose   experience  as    ti>    the  l'*v  r)03,  line 
value    of  vessels   is    continecl    to    the    SiUi    FrMUcisco 
market,  placed  her  value  there  at  sljMId   to  >^l,-_'Ot). 

Ivlward  I'.  .Miner,  who  saw  the  ('(imUiKi  in  ISSil  at ''•''"'•*"'  ^"'« 
lualaska,  stated  that  a  ditfereuce  in  valuation  hetween 
her  and  a  new  siiip  of  uiodei'u  construction  and  Ituild 
would  lie  tulK   ;")(!  per  cent. 

IJciuii'  asked  what  she  wiis  wtirth  in  the  market,  he 
replied: 

III  tlic  iiiarkot   1    iliii-    slic   would  lie  probiilily  useless,!;,,  -kSS,  line 
iiiiU'ss  tlicic  was  some  Hpt'cial  btisiness  to  luit  lier  iiitd  tiiat     ■"'■ 
slio  could  ac('<iin]ilisli. 

Aj^ain: 

[n  tlio  market  j>ciierall,v  a  vessel  that  had  been  built  \<no 
inucli,  ot  that  aj-'c.  would  bo,  I  think,  coiniiaratively  useless. 
There  amid  Ik  no  market  niliir  net  on  her. 


.'«. 


THOUNTON. 

The  Tliiirnloii,  !H'\7A(\    Au^iust   1.  iSSti,  wa>  liuilt  at 
Dunji'eness,  iu  Washiuiiton  Territory,  Initeil  States, 
in  1S(;1.     She  was,  acconliuo- to  the  transcript  of  re^is-App,  u,  pp, 
ter,  ."il.l  feet  iu  ien^ith,  lit. 2  feet  in  lieam,  and  fi.!  teet     i"i.  103. 
in  (h'pth  of  hold.      Her  registered  tounao'e  wa>  22.30. 


8  ■ ' 

^w 

Br 

'  '/Bii 

II 

1-"^' 

1 
■ 

'  -1 

30(J 


EVIDENCE — VALUE  OF  VESSELS. 


It  iH  a])j)iiri*nt  from  Irt  (linionsions  an«l  tonnage 
tliat  tlic  vessel  was  hroail,  Hat-bottoiued,  and  of"  an 
antiquated  model,  and  this  is  coufirined  by  the  fact 


R.,  85!),  line 


that. 


r,». 


)rior 


to  1877,  wlieii  she  was  ehanjied  from  a 


slo<i])  to  a  schooner,  siie  had  a  ceiiterboard. 


lotHi,  liiif      ('a|)t.  Alexander  McLean  states  that  she  was  an  old 


m<Mk' 


I05t>,  line      ( 'aptaiii  Hayiioi-,  who  saw  her  in  Unalaska,  where 


ox. 


she  w 


as  taken  .d'ter  seizure,  states  that  "she  wa.- 


verv  old-fashioned  model — about  the  same  model  oi' 


vessc 


•Is  built  about  IS.'.Oand  ISo.'j. 


U3 


K.,^ior)ti,  line  It  Would  a|)i)ear  from  the  evidence  that  the  vessel 
was  in  a  dilapidated  condition  at  the  time  of  her  sei- 
zure, as  her  mainmast  was  broken  oti'  about  7  feet 
below  the  crosstrees,  and  her  fore  riiiyiny  was  carried 


iwav 


R..!Mr..line3. 


That  her  condition  in  those  \-ears  demanded  exten- 


sive repairs  every  year  on  the  |»ai 


rt  of  1 


ler  owners  is 


a|t))arent  upoi 


1  the  statement  of  F.  1).  Warren,  that 


the  annual  wear  and  ti-ar  upon  the  vessel  would   be 
fully  Nl.dOO. 

'i'liis  may  in  a   measure  be  accounted  for  l»y  the 

fact   that  she  was  wrecked   in   the  earlv  summer  of 

}{..  !ii!i,  linr  l-'^'^.'J  on  the  west  coast  of  N'ancouver  Island,  at  a  jioint 

where  she  was  exposed  for  several  v\  i  ('ks  to  the  full 

KHis,  lint- sweep  of  the  southwestern  jiales  which  prevail  at  that 


li». 


period  of  the  year. 


R.,   !»37.    lin. 

10. 
K.,   841,    line 


.V 


ccordin 


hn 


to 


>\ 


iirreii. 


h 


entiine    was    smai 


ind  it  would  appear  from  the  e.idence  that  it  was  of 
little  value  to  the  vessel  as  she  was  towed  into  Herinji' 
Sea  throuji'h  I'uimak   I'ass  l)y  the  D(il/)liin,  althoujih 
"■,jg'"i'*'''"''Mt  the  time  she  had  all  sails"  set  and  was  iiiidci- full 

Iv'.,  i()l;j,  line  llidil  of  stciiill. 
(>0. 


u. 

K.,  !t08,   lini 
r,\. 


K.,   !l()4,    III 

R.,   937,   lii 
10. 


Captain  Warren  stated  that  he  purchased  the  v( 


tl 


u-ee  vear; 


atter 


she  was   hui 


It  f. 


M.SOO 


II( 


)laced  a  value  <in  her  at  the  tinu*  of  seizure  of  >^(», (MM I. 
Exhii.if,    c.       1,1  coiuu'ction  with  this  valuation  of  ('ai)tain  War- 

I'..  4(.  ' 


'.•ipn 


:| 


EVIDENCE VALUE   OP   VESSELS.  307 

ren's,  his    testimony  in    Warren    v.  Hoscowitz    is   of 
interest: 

1)31.  i}.  I  want  you  to  state  as  nearly  as  you  can  what  the  R.,  944,  line 
cost  of  these  vessels  was.  24. 

A.  The  cost  of  running  them? 

032.  Q.  No;  the  vessels. 

A.  Well,  r  put  the  Thornton,  I  think,  at  $4,0(K)— that  is, 
the  time  she  had  her  machinery  put  into  her  and  was  made 
a  steamer  of. 

(Ml  redirect  exaiuiniition,  C'u])tain  Warren  endeav- 
<tre(l  to  ex])lain  away  tliese  statements,  bnt  the  hni- 
gnajie  is  too  ])hiin  to  <h'})rive  it  of  the  weiglit  it 
possesses. 

'rhe  T/ionihii  was  mort<.a«>(Ml  in  1S8.')  l)y  Warren '^'^g^**^^' """^ 
to  Moseowitz  for  the  sum  of  84,()()(),  jnid  sold  at  ]iub- 
hc  auction,  after  ltein<>'  reiiidarly  advertised,  for  >^1.()0,  \^'^'''' ''°® 
subject  to  this  mort«;a<i'e. 

It  ajtpears  also  by  the  (diarter  party  from  Warren's '^v,,f^'^'  ''"® 
assi<inee  to  Hoscowitz,  dated  Februarv,  tSSd,  that  the 
vessel  could  not  be  sold  for  the  amount  due  on  the 
mortfiiifie. 

The  annual  wear  and  tear  on  the  'riiornioti,  as 
fiiveii  by  Captain  Warren,  nuist  1)e  deducted  from 
any  valuati(»n  made  of  the  vessel,  as  sluf  had  com- 
])leted  over  three-fourths  of  her  vovaii'c. 

In  the  Argument  on  behalf  of  (Ireat   Britain  the'^''-.' J^ys-.^f*) 
value  claimed  for  the  Tlionitoii  is  s7,0()(),  or  $1, ()()()    '"'*'*■ 
htofv  f/itni  is  claimed  hi/  Iter  (illciicil  oiriirr. 

The  evidence  relied  u])on  in  the  Arsrumeiit  as  to 
the  valuation  of  the  vessel  is  entirelv  based  upon  tes- 
testimony  of  what  it  would  cost  to  Imihl  a  iicir  rcssfl 
of  a  similar  li/pc  Four  j(»urneynien  ship  carj)enters 
were  ju-odiiced  to  establish  such  a  valuation. 

II.  J.  Cook  gave  her  value  in  ISSl  at  sr),.")00,  but":^^^^'  ''"* 
stated  that  he  was  "not  talking  about  the  market 
value." 

Walter  Walker  said  that  he  "considered  she  was ^-^5^^^'  ''°* 
worth,  machinery  aiul  all,  about  S6,000  in  1886." 


11     ,     , 


ii:,... 


308 

E.,  965, 
3. 


K.,  1028, 
44. 


R.,  966, 
19. 


R.,  10<>9, 
46. 


App.     B, 
104. 


EVIDENCE — VALUE  OF  VESSELS. 

line  William  Sliej>litli(>liii  valued  her,  before  her  ina- 
chiiierv  was  put  in,  at  about  85,000,  and  in  1886, 
machinery  and  all,  at  "perhaps  .soniethiny  over 
S7,000."  ' 

"ne  (i.  W.  Cavin.  who  was  employ«*d  to  H«»at  the  ves- 
sel when  she  was  jiromided  in  1883,  stated  that  he 
suppost'd  "she  was  worth  ])robabl\  >S5,000  or  8(i,OO0, 
exclusive  of  her  machinerv-" 

iiesides  tiie  ship  carpenters  al)ove  referred  t(»,  a 
report  i»f  Assistant  treasury  .Vucnt  l>avender  is  relied 
upon  in  the  Arjiiinieiit  as  to  the  valuation  of  the 
vessel. 

liiif  Mr.  Lavender  saw  her  in  181)0  on  the  beach  at 
I'lialaska,  and  he  states:  "  I  should  think,  irln  ii  inir, 
that  87,000  would  l)e  a  fair  price  for  her,  including' 
her  t'lijiines  and  all  other  accouternients,  i-eadv  for 
seii." 

it  is  evident  that  this  statement  mav  be  place<l  in 
the  same  cateji'ory  as  the  testimonv  of  the  ship  car- 
p<'iitei's  referrecl  to,  who  l)ase  their  valuation  u))oii  the 
cost  of  buildiiiii'  new  vessels  in  lSS(i. 

On  the  (juestion  of  market  value  but  one  witness 
appears  by  the  Record  to  have  uiven  evideiu-c — ("apt. 
Alexander  .McLean — and  he  testified  as  follows: 

''"o  I  think  from  herascaiuliippcanuiceat  tliat  liiiio,  and  tVoin 
the  otli«r  vi'S.sels  that  were  cliaiiginj;  hands  here,  I  think  she 
wonid  be  worth  aboiU  •*I,.s()l>,  outside  of  the  niacliinery. 

ONWARD. 

The  Ownuil,  seized  "Jd  .\u<iust,  188(!,  was  Itiiilt  in 
California,  I'liited  States,  in  the  year  1871.  .\ccord- 
inji'  to  the  transcri])t  id"  n-j^ister,  her  len<ith  was  ftG-o 
feet,  beam  20  feet,  aiwl  di'ptli  of  hold  4.')  feet.  She 
had  a  rejiistered  tonnage  (d  3"). 20.  She  was  coii- 
striuded  (d  the  usual  material  used  upon  tht*  Pacilic 
Coiist,  termed  indiscriminately  (')re<i'on  pine  and 
Doujrlass  hr. 

As  to  the  value  (tf  this  vessel,  live  ship  carpenters 


KVIDENCK VALUE    OF    VKSSKL8. 


309 


were  sworn  l)y  (ireat  Mritjiin,  nil  <»('  wlioni  based  their 
estimntes  upon  tlie  cost  at  N'ictoria  in  lS8(i  of  huild- 
in<>'  vessels  similar  to  the  Oinrttnl. 

Ilnhert  .1.  Cook,  on  heiii"'  asked,  "What    is  vourR.  >^^''^,  liua 
estimate  of  the   cost  of  the  Otniard   in    l^S()f"   an- 
swered. '•!  considered  hel  ween  >*4, 000  and  ^jj.OOn,  or 
sometliin<i-  like  that." 

Orlando  Warner,  who  stated  that  he  did  not  know  K--^«5.5,  liuo 
the    aj>e  of  the   vessel  and   never  worked   upon   her. 
estimated  her  value  in  the  nei;ihhorhood  of  84, 000  to 
§5,000  "ready  for  an  ordinarv  trip." 

Sanniel    Sea  stated    that   he  should   think  a  vessel  K'..  «">•!,  Hue 
of  her  kinil,  as  she  was  then,  would  Ix-  worth  >^4..")nO 

Alexander  Watsdu,  jr.,  i;ave  his  opinion,  from  \\;\y-  it.,  85S,  line 
in;;  s.x'U  her  in  the  hariior  on  several  o.-casions,  that    '''^' 
she  was  worth  from  >i4,;)2.")  to  ^^'),000. 

Walter  Walker  stated   that    he   should    jud;i»'   her  K.,  wo, lima, 
valiii'  to  i»e  altoiit  n4,()0(1. 

liesides  these  live  witnesses  sworn  as  experts, 
Charles  Spriiiii',  half  owner  of  the  xcssel  and  the 
claimant  in  this  case  itefore  the  Commission,  was  also 
sworn  on  hehalf  of  ( Jreat  Britain  as  to  the  value  of  the 
vesstd.  Meiu^'  asked  for  his  o|>inion  as  to  her  value, 
he  replied:  "1  put  her  down  at  >>4,000,  idiisidn'mii 
that  '^lic  ints  irtirfli  rcnii  liit  of  fluil  to  iiic  at  that  sfircial^^-f^y'^*''^'  '"'® 
time" 

On   cross-examination   he   was  asked:    "Did    \  (»u  K.'^Tii.liiiei. 
intend  to  te^tify  to  the  market  value  of  the  (hiininl 
in   l.SSfi  ?"     To  which   he  answered;   "  Xu.  no;  just 
irliut  slic  /rax  irnrth  to  iin/sclf'  I'li/fiii/i'il  in  that  hii'^iiii'ss, 
hdriiK/  itoth'nifi  to  lintr  on  lltr  inarl.it  irhatrrrr." 

The   oidy   tw<t   witnes.ses   who  testified   as    to   the  H.,  0(X),  hue 
market  value  of  the   Oiiirant  were  Captain    Kavnor 
and    Capt.    .Mexander    .McLean.      The    former    was 
on    hoard   ot    the   vessel    at    ITualaska    immediatidv 
after  the  seizure  and  stated    thiit  he  considered  the    Vj^'.  '' 
market  value  of  the  Omnird  in  I  HSU  to  be^-J.OOO. 


m 


310 


EVIDENCE — VALUE   OK    VESSELS. 


K.,  1070,  line        Csipt.    All'MUultT    McLl'SUl,    wllO    WHS    llijlf     OWllOl' 

K  '1070  liiie**^   *''^'    ^■^''^>*i''t  stilted   tlifit    1k'    would    consider   tlie 
8.      '        (hnranl  to  be  wortli   in  the  port  of  Victoriii  in  the 
year  lHHr>  from  s2,2(Ml  to  s2,30O. 
R.,  S79,  line      In    ('orrol)orntion    of    this   testimony    of   ('}ij)tiiin 


(ii 


McLean's  it  a]))K'ars  that  the  Onward  was  transferred 
in  June,  1884,  to  ('hades  Spriii}-'  ct  Co.  for  82,20(1. 


ANNA    HECK. 


App.,    It 
IIL'. 


K.,  U33, 

t!7. 
K..  '.17.-., 

3.-.. 
K.,  974, 

,-)!!. 

K.,  u:u. 

15. 
K..  1134, 

,"iO. 
1{..  1134. 

55. 


R.,   978, 
3."). 


R.,   9~><, 
50. 

R..   9S1, 
6!l. 


R.,  1016, 
25. 


!'•      The  Jy/w« />Vc/i' was  huilt  at  San  Francisco  in  ISdo. 

Her  length  was  iilij  feet,   beam,  22. (!  feet,  depth  of 

hoM,  ;")  feet.     She  iiad  a  rejiistered  tonna<re  of  ;{(!..'{;">. 

''""      Siie  was  purcha.sed  l)y  d.  D.  AVarren  in   1872  for 

liiieS4,(K)(),  inid  in  iSSd  she' was  fitted  for  steam.     Only 

[j„g()re<;on  pine  was  used  in  her  construction. 

Ill    lss;{   ,she  was  burned  to  the  water's  edu'e,  and 

lino  1      .1.      .   1-.    ^ 

was  rel)Uilt  at  \  ictoria. 

"'"'      Captain  Warren  testilied  that  the -cost  of  rebuildin}^' 

line  was  al)(»ut  ><r),(»0(),  "■crh'i/fliin//  roi)ii)lct>:"  The  machin- 
ery whicii  had  Iteeii  in  the  vessel  when  .><he  was  burned 
demanded  cnnsideral)le  repairs,  and  the  >>5,<>0(),  it 
would  apjx'ar  from  the  evidence  covered  whatever 
work  was  done  in  making'  the  engine  of  use. 

Five  witnesses  were  sworn  on  lu'lialf  of  (Jreat 
iiritain  as  experts  upon  tiie  value  of  the  vessel.  All 
of  them  were  j(»urnevmen  ship  cari>enters. 

''"•'  Walter  Walker  considered  her  worth  ss,00(>  or 
s9,()(i()  when  she  Hr.st  oanie  out  in   1SS3,  after  the 

line  repairs,  and  estiimited  her  depreciation  in  four  years 
to  have  been  lietween  >;500  and  81,000.      lie  stated 
'°*ulso  that  his  value  was  based  "on  the  day's  work  and 
material,  whether  costly  or  not." 

Orland(»  Warner,  who  worked  jiart  of  the  time  on 

line  the  Anna  litck  while  she  was  underf>(>in<>'  repairs  in 
IS83,  valued  her  without  her  maehinerv  at  from 
$5,000  to  $6,000. 


KVIDENCK — VAl,LE   OF    VESSELS. 

fre<)r<>e  \V.  ('uvin  sjiid  tluit  the  vessel  would  repre- 
sent nt  that  time  lietweeii  S6,(l00  and  ^7,000,  exclu- 
sive of  niaciiinery.  On  cross-examination  lie  stated 
that  she  was  probably  worth  S7,(|()()  ,),•  s,s,()(K), 
exclusive  of  machiiierv. 

liichard  Hennett,  wlio  stated  that  he  had  not  seen 
nnu'h  of  the  Aiiiiu  lire/,-  since  1SS3,  fixed  her  value 
at  about  s(;,50(). 

All  of  these  witnesses,  as  heretofore  shown,  l>ase 
their  valuati<»n  U|)on  the  cost  of  buildin;^'  a  new  vessel 
at  Victoria  in  the  years  iss;}  or  J  SHU. 

it  nuist  l»e  also  borne  in  mind  that  the  cost  of 
repair  work  was  more  expensive  than  new  .vork  in 
Victoria,  and  that  a  vessel  similar  to  the  Amid  Jlnl: 
could  have  ])robably  been  built  in  18S,-}  ))v  the  da\  's 
work  for  a  sum  less  than  the  cost  of  her  reliuihlinii', 
but  at  the  time  when  the  accident  occurred  Warren, 
who  was  then  her  rej>istered  owner,  was  al>sent  from 
Vi<'toria,  and  the  repairinji'  was  <lone  under  the 
direction  ctf  an  a<i»'nt  or  attornew 

The  Aiiiiii  liril;  was  morljia^-ed  for  >^4. (»()<»  in  1SS4, 
l)y  one  flartnell.  to  dosepli  Moscowitz.  Subji-ct  to 
this  mort;>aji<'  the  vessel  was  sold  in  ISS."),  jit  puldic 
auction,  for^if.  In  the  fall  of  1SS6  she  was  aiiain  sold 
for  a  nominal  price,  subject  to  fhe  same  mortjiaoe. 

in  February,  1S8(>,  tlie  assi<>nee  of  ,1.  j).  WarnMi, 
chartered  the  (iidcc,  Doliiliiii.  Ahiui  lln/:,  'rhunifdii, 
liiisflcr,  and  oiu'-half  of  the  IT.  /'.  Sdjiiranl  to  dose])h 
Hoscowit/,.  the  niortf>a{>'ee.  In  tiie  pi'eamlde  of  the 
charter  tlie  followin<i'  ap])ears: 

And  wliereas  the  amount  due  to  tlie  suid  .losepli  Iioscowitz. 
upon  tlie  said  mortgages  or  bills  of  sale,  is  greater  tliau  the 

sum  tor  which  the  said  schooners  and  interest  can  be  sold 

*    *     « 

Heariuji'  also  upon  the  (piestion  of  the  value  of  this 
vessel  is  the  fact  that  after  her  seizure  she  was 
appraised  at  Sitka,  with  her  outfit  and  furinsliin<>',  at 

82,600. 


311 

l{.,  lOHl,  lino 
40. 


I{..  10:«,  line 


K..  WM,  \iw. 

1. 
I{.,  10;W,  line 

10. 


I{..  1031,  line 


I{..  108(i.  line 

U.,  10S7.  lin.> 

1.".. 
K..  loss,  lines 

10.  ."):i. 


!{..  10S7.  line 
12. 


K.,  lllUi,  line 
.i.i. 


m: 


I,  ■  r 


It ' ' 


312 


'  '  .1; 


R..  1276, 
S3. 


R.,  1278, 
U. 


R.,  1L'70, 
20. 


R.,  1282, 
2U. 


EVIDENCE — VALUE   OF    VESSELS. 

Ill  a  IctttT  t'roiii  tlic  TiiitcMl  Stiitcs  iiiiirslial  to  tlic 
Actiiiji'  Attoriicy-Cu'iicral  ot"  the  I'liitt'il  States,  (latcd 
August  23,  1SS8,  the  tollowinjr  appi'nrs: 

line  The  owiuTs  of  the  scliooners  Aiiiki  /.VcA',  (Irao',  nud  Ihl 
l>lihi  chiiiii  that  the  apprai.seiiieiit  iiiaile  at  Sitka  one  year 
a{j<>  was  lit  the  time  iwirsHirr,  and  that  their  value  on  accoaiit 
of  tlie  iutieinent  weather  of  Ahiska  lais  in  the  nieantiiiie 
coiKstantly  been  depreciated,  and  therefore  <lecline<l  to  bond 
them  at  niicIi  ap])raiseinent,  which  if  not  granted  they  desire 
the  sale  to  proceed. 

The  owner  says,  however,  that  lie  will  furnish  satisfacKay 
bonds  for  the  sclmoner  Atiiiii  Itirh.  at  her  present  ai)prais('(l 
value,  if  it  can  be  etfected  subject  to  a  final  sellieinent  of  the 
matter  and  without  expense  of  an  api)eal  to  the  Supreme 
Cinirt. 

liuo  A  similar  statcinciit  a|t|a'ars  in  a  letter  t'roni  tlie 
Secretarv  id' State  to  tlie  iJritisii  minister  at  Wasliin;^- 
toii,  dated  Se|iteiMl»er  "JT,  1  SSS. 

On  tlie  4tli  ot.lmie,  1SS!».  a  eomiiiittee  of  the  lioii- 
oraMe  tlie  I'livy  ( "oiincil,  a)>|iroved  l»y  His  Mxcel- 
leiicN  tlie  ( iovenior-CJeiK  ral,  in  coiineil,  ret'errin;^' to  a 
former  re|Mirt  adopted  in  I  )eceml)er,  ISST.  in  relation 
to  tlie  seizure  of  tlie  IT.  /'.  Siii/ininl,  (iiiirr,  Aiiiiii 
/tri/,\  Ihi/iiliiii,  ;ind  Add,  reported  that — 

liue  One  vessel  was  released  on  the  l.">th  May,  IJSSS,  under 
bonds,  vi/,  the  si'lutoncr  W.  I'.  Snj/irinil.  The  owners  of  the 
other  vessels  (except  the  .l(/(r.  for  which  no  owner  could  lie 
found )  ccrisidcred  that  the  appraisement  was  largely  in  excess 
ol'  the  \aliie  <d'  the  vessels. 

To  iieet  the  ol»\ioiis  coiicliisioiis  to  lie  drawn  from 
the  siatemeiits  appeariiiu'  in  tln-se  letters  and  report, 
a  tele;irain  was  otfereil  in  evidence  on  helialf  of  (ireat 
Hritain.  addressed  to  the  lion.  ('.  II.  Tupper,  from 
Lieiitenaiit-(ioveriior  Nelson,  dated  at  \'i('toria,  .luly 
■JO,  1S8H.  The  followinji'  is  an  extract  from  the  tele- 
gram: 

line  The  districit  court  of  Alaska  has  refused  bonding  to  the 
owners,  giving  as  reason  application  too  late.  Indcr  present 
circumstances  owners  willing  and  anxious  to  bond  vessels 
for  apprai.sed  values — Anna  lieih;  ijaiiiOi);  IMpliin,  !!t7,7.JO; 


EVIDENCE — VALUE   OF    VESSELS. 


313 


Gr<wi',  $10,404;  Adii,  $2,000. 
tion  have  sale  postpuned. 


Pending  settlement  of  (|ues- 


Tlie  diiti'  of  tliifs  tt'k';^Tiim  is  firo  months  priar  to  tin* 
letter  of"  the  I'liited  States  iniiisluil  anil  tliri'e  iiioiiflis 
juiorto  tlie  letter  of  the  Seoretarv  of  State,  while  the 
report  of  the  eoinmittee  of  the  privy  eouiieil,  already 
referred  to,  was  appn>ved  over  ten  months  ((fh'r  this 
telejinuu  to  the  minister  of  marine  and  fisheries  of 
Canada. 

It  is  chiimed,  therefore,  that  it  does  not  in  any  wav 
aflect  the  weight  of  the  evidence  prodnced  as  to  tlie 
exeessiveness  of  the  ai)praisement,  and  it  would 
appear  that  if  the  owners  in  .Inly  were  willin;;-  to 
l)on(l  the  vessels  at  the  appraised  value,  they  recon- 
sidered the  matter  before  tiie  date  of  die  letter  (»f  the 
United  States  marshal. 

The  principal  witness  pro<luced  on  the  part  of 
(ireat  Britain  as  to  the  value  of  the  enjiines  and 
boilers  of  this  vessel  and  of  the  <»thers  rej^istered  in 
the  name  of  'V.  II.  ("ooper  was  F.  A.  Thomson,  the 
official  inspector  of  hulls  at  the  port  of  Victoria.  IlisK'..  9«t),"iiue 
testimony  is  based  upon  surveys,  not  made  by  the 
witness,  appearinj^'  in  the  ivcords  of  his  (»Hice  for  the 
year  iHHn.  He  stated  that  the  enjiine  of  the  Aniiii 
llrck  was  substantially  a  duplicate  of  the  Tliornfoii''s,  i 
which  has  already  been  discussed. 

His  values  are  evidently  uncertain,  as  at  one  place  R.,  "97,  line 
in  the  Record  he  values  the  machinery  of  the  (iraa',    ''''' 
in  IHS,')  at  83,500  and  aj^ain  at  83,200,  but  (htes  not  ^.^  looi,  uno 
state  whether  that  valuation  is  for   188.")  (U-  ISSIi.      If    I-'. 
die  latter  valuation  is  for  1885,  it  is  clearly  contra- 
dictory of  his  former  statement,  while  if  it  is  a  valua- 
tion  for  I88(i   the    depreciation  of  the   en<>ine   and 
boilers  would  be  approximately  8.i  per  cent.     Yet  he 
stated  that  the  Tlioniton's  machinery  could  be  sold 
(ifterfivc  Hears'  usin<>'  at  but  Ih  percent  oti'  its  original 


40. 


R.,  996,   line 


value.      These    statements  of    Thomson    are    much    62.    ' 


line 


B  S- 


-40 


314 


KVIUENCK — VALUE   OF    VE88EL8. 


!it  viiriiHH'(*  with  tluisG  of  Andrew  (Jray,  inspoctor  of 

l)»>il('rs  in   18Hl'.     'I'lie  latter  witness  stated  that  iria- 

t'hinery  kept  in  jiotxl  runnin*;- (»rder  would  depreciate 
K.^  mi8,  lino-,  pj.,.  ,.,.iit  J,   year,  and  tliat  lie  had  sometimes  seen 

siM'ond-hand  inaciiinerv  no  at  one-fourth  of  its  cost. 

lie  added,  "It  is  hard  to  place  a  value  on  second- 

R.,  lojo,  lino  hand  machinery."     AH  the  other  witnesses,  exceptiiif; 

""•  (Jray,  who  are  produced  as  experts  on  the  machinerv 

hase  their  opinions  on  the  descriptions  <iiv;'ii  hv  Mr. 

Thomson,  which  were  .shown  to  he  incomplete. 


App.      li, 
114. 


li 


App.     H 
llti. 

.    !'• 

H.,  io:w. 

13. 
u.,  i():!0. 

liiu' 
lino 

K..  KlOil, 

line 

K.,  iK,l, 

1. 

line 

K.,  11  mi, 

8. 
H.,  113,->, 
■IJ. 

lino 
line 

R.,  1010, 

85. 
K..  1011>, 

lino 
line 

U.,  !t7i», 
31. 

lino 

R.,  ii7ii, 
60. 

lino 

ORACE   AND   DOI.l'HIN. 

The  (hare  and  Ihtl^thiH  were  huilt  at  Victoria;  the 
former  in  ISSl  and  the  latter  in  lHS-_>.  Accord- 
in^'  to  the  tran.script  of  rej>'ister,  the  hol/iliiii's  length 
was  77  feet,  beam,  22.7  feet,  depth  of  hold,  7.5  feet, 
and  re<;istered  toniii<<'e,  (lO.lO.  The  lenji'th  of  the 
(rnirc,  accordinji'  to  her  rejiister,  was  7(1.;")  feet,  heaiii, 
23.4  feet,  dej»th  of  hold,  X  feet,  and  re<>isterod  toii- 
naji'e,  7<i.87. 

The  lUtliili'ni  appears  hv  the  testii  mux  ,o  have 
l)een  huilt  of  hettcr  material  than  the  (iniic;  the  lat- 
ter heinji'  coiistructeil  chieHy  of  l)ou<>las  tir,  vsliile 
the  former  had  yellow  cedar  and  oak  as  part  of  Iier 
material. 

.1.  I).  Warren,  who  had  the  vessels  laiilt,  testified 
that  the  (inicr  cost  ''ahoiit  SKI.OdO,"  while  the  /W- 
ph'ni  cost  "sometliiiiji'  over  sKi^ooo."  In  ^'iviii^'  tliesc 
amounts  he  iiudiided  the  en<>iiies  complete.  All  the 
evidence  sul)niitte(l  on  Itelialf  of  (ireat  liritain  as 
to  the  value  of  these  v«'ssels  is  based  n|ton  what  /7 
inmld  cast  In  hiiihl  iliciii.  .S.  Mc(".  Smith  estimated 
that  the  Ihtlfihin  would  cost  811,700  when  launcli(Ml, 
and  the  (inirr  810,00(1. 

Walter  Walker,  who  also  based  his  valuation  upon 
the  cost  of  construction,  stated  the  (iracr  was  worth 
"in  the  neij-hborhood  of  si-j.OOO,"  and  that  in  1SS7 
.she  was  worth  about  813.000  nv  ^14,000. 


KVIDKNCIK — VAI.UK   OF    VEMKLS. 


315 


Uit'lianl  Ht'inu'tt,  iiiititlu'r  joiinu'viimii  ship  cariM'ii-  '*'.j^j'"''"'  ''"* 
tcr,   statiMl   that    tlu'   (inirr,   lu'   "sli<uil*l  think,  cost 
Ix'twccn  >Sl2,(l()0  ami  sia.ooo"  (•(Miiph'tf,  ami  that  tin-  k.,  kw,  lUm 
Jtalpli'iH  he  "should  suppose  would   he  worth  >'2,(M)()    *'*' 
more."     In  answer  to  a  <|uestion  !»y  «»ne  of  the  Coni- 
nilssi»»iiei's,  he  staled  that  his  valuation  meant  the  rust 
ot"  the  vessel. 

(leori^e  W.  Cavin   reaehed   a  valuation   upon   the  "'|,|^^|'*J"' ^2^' 
Ihlpliiiiof  "about  ><-*-.',()0()  or  s-_>;5,0(l(»  with  her  nia- 
chinerv  in,"  iuul  ui)ou  the^Z/wvot'  "ahout  >^lS,()(>l)or  K.,  iiw:.',  line 
S2(),()(>()."  '^"• 

Orlando  Warner  <;ave  his  valuation  of  the  Poljiliiit  ^^    ,,,31,  j^^^ 
as  about  !ii*9,(MH>,  exclusive  of  niaehinery,  Itasiuji'  his     12. 
valuation,  as  usual,  upon  the  cost  of  anistnictitiii. 

Which  of  the  two  vessels  was  tiie  more  valuable  is''-gi"i^'  "•>« 
uncertain.     We  have  James  I).  Warren,  a^ent  of  the 
owner,   <iivin<i'  the   cost  of   each  at  about  the  same 
amount,   and  ()rlan<lo  Warner  statinji'  that  the  ves- 
sels were  of  alxiut  e(|ual  value,  while  S.  Mc(".  Smith 
places  a  hijiher  valuation  upon  the   Orarr,  and  the 
witnesses  Cavin  and    Bennett   place  n  hijiher  valu- 
ation upon  the  Jitil/iliiii.     The  appraisement  of  these  K..121S1',  Hue 
two  vessels  at  8itka,  with  their  furniture,  outtit,  and    "  ' 
stores,  was,  the  Doljih'ni,  87,7aO;  the  (irair,  sl(),4()4. 


i 


iii 


ADA. 


The  Ada,  seized  Auf^ust  --T),  ISS7,  had  her  p(a-t  of "j^^**''  ""« 
origin  at  Yokohama,  .bij)an.  She  was  built  in  1SS2, 
the  frame  l)ein<>-  constructed  of  kieki  wood,  while  her 
p1ankin<>'  was  of  C)re<;(m  pine.  According;'  to  her 
refj-ister  she  was  To  feet  long,  21  feet  beam,  and  8 
feet  de{)th  of  hold,  with  a  rejiistered  tonnaj^e  of  ()r).23. 

C.  A.  Lundbery,  one  of  the  jtersonal  claimants  be- 
fore  the  Commissioners,   stated   that    her    hull  and  H.,  1210,  liuo 
spars  actually  cost  8r),50(),  while  the  balance  of  tlici}''  7^4   ij^g 
(mtfitting  of  the  vessel  was  82,000.  ■!:<■  . 

From  further  examination  of  the  Record  this  state-    is,  ''' 


31G 


EVIDENCE — VALUE   OF   VESSELS. 


1X3. 


Ai>p.     IJ 

184. 


R.,  1239,  line 
58. 


ment  of  tlie  mate  of  the  Ada  must  be  accepted  with 
caution,  as  it  appears  that  in  April,  lS8(i,  wlien  the 
vessel  was  four  years  old,  twenty- one  shares  of  tlu> 
App^  B,  p.  schooner,  and  one-third  of  the  interest  in  her  boats, 
ji'uns,  annnunition,  and  s:nall  arms  were  transferre*! 
by  Wiiite,  then  the  sole  owner,  to  (liray,  for  !^l,333.3i{. 
The  followiii"-  year  the  ves.^el  was  brouyht  to  Victoria. 
p.,I.  J.  Gray,  on  the  3()tli  of  March,  1S87,  purchased 
twenty-two  more  shares  of  ihe  Ado,  the  consideration 
in  the"  bill  of  sale  beinji"  stated  as  s2,36S.40. 

The  testimony  of  Gray  disclo.ses  that  the  actual 
price  he  ]>aid  for  the  third  he  last  purchased  was 
81,333.33,  besides  which,  and  included  in  the  con- 
sideration mentioned  in  the  bill  of  sale,  was  the 
cost  of  repairinji-  and  prepariiiii'  the  Ada  for  her  trans- 
I'acihc  voyaji'e  to  Victoria.  It  would  appear  from 
this  that  one-third  i>f  the  v«'ssel  was  sold  in  the  sjirinji' 
of  18S7  at  the  rate  of  S4,0(>(>  (Mexican),  at  Shan«>- 
hai;  and  (iray  further  testified  that  it  cost  to  brin<;' 
the  ves.sel  across  tlie  PaciHc  "al)out  8-JOO  or  s2r)(», 
may  be,  runniuu'  expen.ses  and  waucs  of  the  vessel." 
Soon  after  she  arrived,  which  was  in  the  earlv  ])art 
of  A])ril,  Captain   Siewerd,  whose  (pialitications    for 


R.,  1237,  liD( 

It. 


K.,  1221),  line     i       •  i  i      i  1  i       i 

25,  placm<i'  a  vnlue  upon  vessels  liave  alrendx'  l)een  dis- 

cussed in  this  .Vruument,  made  (ii-a\'  an  offer  of  ss,()00 

R.,  1212,  line 

l."i. 


'or  ^!),()()0  for  tlie  Ada.  The  offer  included  her  seal- 
ini;'  outfit,  exce])tini;'  some  provisions. 
R.^  1214,  line  ( "aptaiu  Siewerfl  stated  tliat  in  the  autumn  the  Ad<t 
would,  includiiii>- depreciation,  liave  been  worth  to  him 
^1,8(M)  less  than  he  offered  in  the  spriuj;-.  As  lier 
voyaj^e  had  been  completed  before  she  was  ])oarded 
by  the  oflicers  of  the  Inited  States,  even  acceptiuj^' 
thisofl'er  of  Captain  Siewerd's  as  e\  ideuce  (tf  her  vahu', 
she  would  have  been  worth  in  the  uei<>'hborhood  of 
!S(;,8()(». 

.J.  I).  Warren,  who    acted   on  behalf   of   the  own- 
ers of  the  Ad<i,  made  a  declaration  at  Ottawa  for  the 


EVIDENCE — VALUE   OF   VESSELS. 


317 


purpose  of  presenting'  the  claim  of  the  ve^s.s<'l  to  tlie 
United  States,  in  wliich  is  the  t'oHowiiig  statement: 

The  value  placed  on  the  Ada  by  lu-r  said  owner  at  tbetinieR.,  i263,  Hue 
of  the  seizure,  viz.,  $7,000,  is  a  fair  and  reasonable  value  for    43. 
the  Ada  when  seized. 

Fn  liis  cross-examhiiition  in  regard  to  tin's  valuation, 
Gray's  testimony  is  as  follows: 

Q.  The  question  is,  Mr.  Gray,  was  your  estimate  of  then.,  1238,  line 
^If/rt  $7,000 f  37. 

A.  That  I  coTiJd  hardly  tell. 

(}.  What  is  your  best  judgment  about  it;  was  tliat  your 
estimate  of  the  value  of  the  Ada  jtresented  against  tlie  Gov- 
ernment? 

A.  About  ■«<7,000;  87,000  oi>  .«<8,000;  .sonu'thing  of  that 
sort. 

The  claim   is  made  in  the  Argument  on  helialf  (»f"''.A'"K.i28, 
Great  ih-itain,  that  the  value  of  the  Aila  was  S!l, (!()(»,     ""'''^' 
or  full//  SJ,(f()()  iiioir  tlidii  III!'  (iifiirr  rldimcil  iit  JSS7. 

The  only  witnesses  i»ro(luct'd  on  hclialf  of  the 
claimant  in  sujjixu-t  of  this  claim  arc  dames  (iaudin, 
master  of  schooner,  who  stated  slie  was  tliclu'st  seal- 
ing- vessel  iu  \'ictoria,  and  1{.  CoIIister,  wlio  said  that 
she  was  "worth  fully  ^^M, ()()(»,"  basing-  liis  ojiinion ''"•.: '^'•'' ''"" 
upon  the  knowledge  wliicli  lie  possessed  of  tlie  value 
of  ships  and  tlie  cost  of  slii|iliuildmg-  in  the  port  of 
\'ictoria  iu  1SS7.  Tlie  compete  uc\  of  these  wit- 
nesses togivi'  an  opinion  as  to  the  Ada's  \aluation  or 
superiority  has  been  hei'etofore  discussed. 

Two  witnesses  are  produced  on  belialt  of  t lie  I'liitecl 
States  as  to  the  value  of  the  Ada.  ('a|itain  l{a\iior, 
who,  as  captain  of  the  Allir  I.  Ali/ft;  w.is  .seized  on 
the  same  day  as  the  vessel  in  ipiestiou.  acconijiaiiied 
her  t(»  Tnalaska,  and  was  jirc.seiit  at  her  trial  iu  Sitka, 
stated  that  the  Adn  was  worth  on  the  market  at  \'ic- 
tiu-ia  in  the  fall  of  the  year  ISS7  about  SH, 000, '''{,/-•"'-' ''"« 
reaching  this  valuittion  upon  his  knowledge  of  tin* 
United  States  markets,  with  10  per  cent  added  fo; 
the  Canadian  customs  duties. 


S^f 


I 
It 


m 


I   'it 


I,' as 


318 


EVIDENCE — VALUE   OF   VESSELS. 


'*•' 1264,  Une  C'upt.  Alexander  McLeau  gave  his  opinion  that  the 
market  \ahie  of  the  A(la  in  Victoria  in  1887  was  about 
S(j,500,  from  wliich  nuist  be  deducted  the  wear  and 
tear  for  a  full  season,  having  been  seized  August  2o. 
The  United  States  claim  that,  for  the  vessels  e^l/ jd 
and  condennied,  owned  by  persons  in  whose  behalf 
Great  Britain  is  entitled  to  claim  com])ensation  from 
the  United  States,  they  are  liable  to  pay  the  market 
value  of  sucli  vessels  at  the  port  of  Victoria  at  the  time 
of  their  seizure. 


'"  wf?! 


PliRSONAL  CLAIMS  OF  CAPTAINS  AND  MATES. 

The  personal  claims  submitted  by  the  Convention 
of  February  H,  1896,  to  this  Hioh  C<»nnnissiou  are 
the  claims  submitted  to  the  Tribunal  of  Arbitration 
at  Paris,  between  pa<>es  1  to  60,  inclusive,  of  the  case 
of  Oireat  liritain  as  filed  before  that  Tribunal: 

These  claims  are: 

Personal  ilaimx. 


J 


C'laiiiieil  hy~ 


F<n'- 


AiiHutnt 
rliiiiueil. 


188fi. 

David  Jlonnu'.  iiiiister  nf  Oinvanl I1I(?k»1  arrest aiKliiiiprisniiment 

MarKotiili.  mate  oi'  Oiiwiinl tirt 

Ilmis  (iiittorniHeii,  masti>r  of  Tlun-iitnii tlo 

Harry  Nomiaii,  mate  of  Tliririitoii do 

Jaim's  <>;:ilvic.  master  (if  CaroU-ua ilo 

Jaiiief*  lllat'k,  miiti'  nl'  ('jiroli-iia dn 


Tola]  tnr  1880. 


1H87. 

■\VaiTcii.  master  nf  Dolphin ■  Siilt'criiius  and  Iossch;  Xaviy;a- 

tinu  ficir  vtssels  rmm  I'lia- 
laskii  to  Sitka. 

John  lit'illv.  mate  of  Itnlphin Sntrt-rinjtrt  ami  losses, 

(iior;:e  IV  Fcrey,  inastrr  of  W.  P.  Saywanl do 

A.  It.  Liun^^  niiitc  of  W.  V.  Siiywiird do 

Louis  (Hsen.  master  of  Anna  herk do 

Michitil  KeeCe,  nuilt'  of  Anna  Beck d'> , 

W.  I'etit,  master  of  (Irnee tht 

C.  A.  Lundherg,  mate  of  Ada do 


.f4.  000 

:;.  5t«i 
4.  mm 
2.  'lOO 
2,  .".UO 

2.  :>{») 

18, Ono 


Total  for  1887 


Total  fi)r  lH8t)and  1887 


1.  (MHI 

'J,  IHIll 

l.OOU 

2.  lUKI 

1.110.1 

2.  nnii 

2.  (IIHI 

i:(,  «;!.■) 

49. 635 

No  other  claims  for  personal  damafjes  were  sub- 
mitted to  this  Iliji'li  ("oiiimission  l>v  the  ("onventiun, 
and  no  sum  can  be  awarded  to  any  claimant  wliose 
claim  is    not  set  out  and  included  in  the  schedule 


above  given. 


319 


I  I 


320       PERSONAL  CLAIMS  OF  CAPTAINS  AND  MATES. 

The  United  States  took  this  position  earh-  in  tliose 
proceedings,  and  moved  the  liiyh  Connnissinn  to  dis- 
miss from  consideration  the  ))ers«)nal  ehnm  of  James 
CJaudin,  for  the  reason  that  it  was  not  embraced  in 
the  schedule  of  tlie  British  case,  Ijetween  pages  1  to 
GO,  as  i)reseKte(l  to  tlie  Tribunal  of  Arbitration  at 
Paris;  was  not  referred  to  in  article  B  of  the  award 
of  tliat  tril)unal;  was  not  embraced  in  the  Conven- 
tion l)etween  the  United  States  and  Great  Britain,  of 
February,  189G:  that  it  <lid  not  arise  bwirtue  of  the 
treaty  of  ISitii,  or  of  the  award  and  findings  of 
the  Trilmnal  of  Arl)itratioii  at  Paris;  and  is  not  an 
additional  claim  spi'citied  in  the  lifth  paragraph  of 
the  ]>reand)le  to  the  Uonvention  of  189(). 

All  [(crsonal  claims  other  than  those  named  in  the 
above  schedule  umst  be  dismissed  from  the  consid- 
eration of  the  High  Commissioners,  and  no  damages 
can  be  awarded  the  claimants. 

The  schcduledisdoses  that  noclaim  was  made  before 
the  Tril)unal  of  Arl)itration  at  Paris  for  damages  aris- 
ing from  the  illegal  arrest  and  imprisonment  of  the 
mate  <»f  the  (iracc. 

A  claim  is  made  for  damages  suti'ered  by  the  mate 
of  the  (iificr  in  the  sche(lule  of  the  claim  of  that  ves- 
sel in  the  British  Argument.  This  claim  undoubtedly 
was  made  by  error.  The  testimony  di<l  not  establish 
that  there  was  anv  mate  of  the  (inuc  at  Sitka  who  was 
treateil  by  the  authorities  of  the  United  States  as  the 
mate,  and  there  is  no  evidciu'e  that  he  was  detained  at 
Sitka  under  the  same  conditions  as  the  other  captains 
and  mates. 

All  claims  for  the  sufferings  and  hardships  of  the 
mendK'rs  of  tlie  crews  of  the  various  ve.s.scJs  which 
are  not  specified  in  the  table  taken  from  the  British 
case,  as  presented  to  tlu;  Tribunal  of  Arbitration  at 
Paris,  are  personal  claims,  and  by  the  terms  of  the 
Convetition  are  excluded  from  the  consideration  and 
juri.sdictiou   of  this    High   Commission.     Under   all 


PEUSONAt    CLAIMS    OF    CAPTAINS    AND    MATKS. 


321 


inteniutumal  coiiiiiiissidiis  i-iMiuirt'd  to  Hndthe  aiiiouiit 
ot'  (laiiiiioes  for  ejicli  iktsou,  tlio  ('laiiiijiiits,  iiit'iiibtTs 
of  till'  crews  of  various  vessels,  liave  heeii  uiiiforinlv 
rcfuiired  to  [ireseiit  claims  for  daiiiMjies  and  siirt'eriiiji's 
separately:  and  unless  such  claims  were  presented, 
tlieir  consideration  has  been  held  to  be  beyond  the 
jurisdiction  of  the  t'onnnission.  The  personal  claims 
made  on  behalf  of  the  members  of  the  crews  of 
various  vessels  in  the  British  Ari>ument  for  the  first 
time  were  not  presente<l  to  the  Tribunal  of  Arbitra- 
tion at  I'aris,  and  no  such  claims  were  ever  p.-esenti'd 
to  the  United  States. 

The  claims  set  out  in  the  schedule  above,  which 
were  presented  to  the  Tribunal  of  Arbitration  at  I'aris, 
are  all  foi'  (hnnaj>-es  arisin*:-  l»y  ri'ason  of  "illeiial  arrest 
an<l  imprisonment,"  and  "sufferin<;s  and  losses,"  with 
the  exception  of  the  claim  of  Captain  Warren,  master 
of  the  Ihilph'ni,  '•navioatinj:'  foin-  vessels  from  Tna- 
laska  to  Sitka." 

Counsel  for  (ireat  Britain  stated: 

What  1  want  to  refer  to  is  this:  The  i)ersoiial  chiims  that  K..  i-'oi,  Hue 
were  especially  placed  lietbre  tlie  Paris  Tribunal  for  I8S(i  and  ''"• 
1887  stand  on  a  ditterent  basis  altogether.  In  188t)  all  the 
captains  were  actually  arrested,  convicted,  and  iniinisoned. 
and  for  that  they  put  a  claim  in,  and  you  may  have  noticed 
that  we  have  been  i)arti('ular  not  to  go  into  the  details  of  what 
the  captains  lost  in  the  way  of  wages,  but  to  claim  under  the 
general  loss  of  the  venture.  The  claims  were  put  in  for  ille- 
gal arrest  and  imprisonment  of  the  captains  and  for  such  an 
amount  as  this  court,  uctiiii/  in  the  phue  of  <i  jiirii,  if  i/oii 
will,  would  give  to  a  person  iliegallyarrested  and  imprisoned. 
The  same  with  the  cases  of  1887,  wiiere  the  i»ersonal  liberty 
of  the  captain  and  mate  was  to  a  certain  extent  interfered 
with.  The  annmnt  and  extent  is  a  nnitter  of  degree,  but  we 
put  that  forward  on  a  different  basis  altogether,  am'  it  has 
always  been  so  done.  We  have  not  attempted  in  this  ease 
to  bolster  up  or  enlarge  the  ease  of  any  particular  captain 
ou  account  of  loss  of  wages,  or  anything  of  that  kind. 

From  the  nature  of  the  claims  made  at   I'aris,  and 
the  statement  of  coinisel,  these  claims  are  to  be  con- 
sidei'ed   by   the   Ilijili    Connnissioners   as   claims  for 
B  s-^ — 41 


'^i't. 


f 


ii:- 


322 


PERSONAI-  CLAIMS  OF  CAPTAINS  AND  MATES. 


(laiiiajivs  arisiiiji'  Ity  reason  of  tlie  alleffed  illcfj'al  arrest 
ami  iniprisoninent  of  the  captains  and  mates  ot"  tlic 
schooners  seized  in  the  years  1SS()  and  18S7. 

The  testimony  establishes  that  in  the  year  JSSl!  a 
charjio  was  made  ajiiiinst  the  captains  and  mates  tor 
violation  of"  the  numicipal  laws  of  the  Tnited  States, 
})roliihitin,u'  the  takin;^'  of  fnr  seals  in  the  waters  of 
Herinji'  Sea.  After  reachin<>'  Sitka  the  testimony 
conclusively  estaiilishes  that  the  men  were  never 
restrained  of  their  liberty,  except  that  they  were  com- 
pelled to  remain  in  Sitka;  that  they  could  ji'oand  come 
as  they  chose,  and  that,  as  a  matter  of  fact,  the  men 
did  have  complete  control  of  their  own  movements  in 
Sitka.  They  were  l)ronj;ht  before  the  court  and  sen- 
tenced, l)ut  prior  to  the  sentence  they  were  not 
restrained  in  any  jilace  umler  lock  and  key.  \ 
^uard  was  never  placed  over  them,  and  they  were 
never,  at  any  time,  ///  jdil.  One  of  the  jurv  rooms 
in  the  court-house  at  Sitka  was  set  aside  for  their  use. 
This  room  was  larj>e  and  c(tinfortable.  'i'liev  wi-re 
provided  with  food  reji'idarly  by  the  marshal,  and 
coidd,  durin<i-  the  day  and  durin<i'  the  ni;;lit,  if  tliev 
so  wished,  occupy  them.selves  about  Sitka  at  their 
own  will,  .\fter  the  sentence  of  the  court  thev  were 
restrained  of  their  liberty  by  beinji'  compelled  to 
remain  in  Sitka.  They  could  ji'o  out  of  the  room 
provided  for  them  at  any  time  they  desiri-d;  no  j;tiard 
was  placed  over  them,  iuid  the  room  in  which  thev 
remained  throu;ih(Mit  the  ilay  and  in  which  they  slept 
at  ni^ht  was  never  locked  against  their  exit. 

in  the  year  1S87  no  formal  cliarii'e  was  ever  pre- 
ferred against  the  masters  and  mates.  Tliey  were 
never  detained  or  restrained  in  any  way,  save  that 
they  were  com})elleil  to  stay  in  Sitka  until  the  Utliday 
of  Septend)er,  when  Capt.  .Fames  1).  Warren  says: 

U.,  liiti,  liiii!  Q,  September  9  we  were  all  called  in  and  released,  and 
are  gettiu};'  ready  to  go  to  Victoria  Ireadiug  from  a  book|. 
Is  that  correct  ? 


M. 


PEK80NAL    CLAIMS    OF    C'A1'TA1N8    AND    MATES. 


323 


A.  Yes. 

(iJ.  To  wliom  does  tin-  word  "we"  refer? 
A.  That  uieans  all  of  us  masters  and  mates  that  were 
bound  over  to  appear  at  court. 

Q.  The  masters  and  mates  of  these  four  schooners? 
A.  Yes. 

.[(»liii  IkcilK ,  of  the  DoljiliUi,  was  fiiiitloyi'd  l)y  tlie 
Uiiit('(l  Stiitcs  lUiirslijil.  wliilc  lu'  was  iit  Sitka,  to  luaki' 
the  tri|)  on  the  (I nice  to  I'lialjiskii,  as  mate,  wlicii  sh 
was  c'liartered  l>v  the  I'liited  States  marshal. 

W.  I'etit,  master  of  the   (iidcc,   was  em])h>ye(l  l)y 


H.,  1195,  line 
51. 


L'liited   States  marshal   to  act  as  eaptaiu  of  the  H..  ii6.-),  i 


(inicr  oil  this  trii>  to  Tiialaska. 

lioth    I'etit  and    Weilly  have   iiersoiial    claims   for 
imprisonment,  surt'erin^,  and  loss,  and  the  testimony 


40. 


snows 


diat 


not  oiilv  wi-re  thev  not  restrain 


ed  of  their 


lihertv,   hut  that  tlie\-  were  actually  employeil,  de- 
parted from  Sitka,  and  paid  for  the  servici's  performed. 
Andrew  D.  Lainji',  mate  of  the  Sni/inird,  while  he 


was   niijirisoiici 


III 


iidt 


a   trip 


to  \Mctoria,  remainiii"' 


vav  from  Sitka  until  a  few  days  priiu'  to  the  time 
that  he  linally  dejtarted  for  home. 

The  oiilv  testimony  adduced  on  behalf  of  theelaim- 
anls  relative  to  the  deleiitioii  of  the  masters  and  mates 
in  18S(;  was  that  of  one  Marketich,  who  was  tin-  first 


witiie; 


sworn 


hefore    this    llii>ii  ("ommissioii,   and 


wlio.se  testimonv  needs  no  comment 


m-no 


VI 


lis  iier.son  was 


rant,  iinahle  to  speak  the  Kn^lisli  laii,i:iia<:e  intel- 
liji'eiitlv,  and  absolutely  iniworthy  of  credence,  lie 
alone,  of  all  the  witnesses  who  were  produced,  oave 
testimon\-  that  the  mates  ami  captains  at  Sitka,  in  the 
ve.ir  l-SSd,  were  treated  in  a  manner,  by  tlie  jiidji'e 
of  the  court  of  the  I'liite*]  States  in  the  'I'erritory  of 
Alaska,  not  becominji-  a  judue  of  one  of  the  courts  of 
the  Tinted   States.      He  savs  that  the  jud<i'e  calledR'.   '7^.   ''"« 


tl 


lem 


robbers." 


This  testimonv  is  directly  conti'i 


dieted,  and  was  never,  throu<;lioiit  the  entire  Record, 

substantiated  by  the  testimony  of  any  other  witness. 

Marketich  also,  in  answer  to  a  (piestion  put  by  the 


p^ 

'is 

';  ': 
(  1 

J; 

11  ■ 

?■■ 

1. 

i 

!'■ 

') '. 

*!!■ 

324 


R.,  500, 
54. 

R.,  71. 


R.,  196, 
■20. 


R.,  496, 
37. 


PERSONAL  CLAIMS  OF  CAPTAINS  AND  MATK8. 

Comiiiissioiior  on  tlu>  psu't  of  Her  ^Miijt'sty,  snid  tliat 
the  ntttni  in  wliicli  all  the  musters  and  mates  sk»pt 
was  oiilv  10  hy  12  feet  in  size.  On  cross-examina- 
tion this  witness  said : 

Q.  And  till'  room  where  you  slept  in,  or  were  coiitined  in, 
was  a  room  just  over  the  jndye's  room  '. 
A.  Ves,  sir. 
(},  The  Jury  room  ? 
A.  Yes,  sir. 

Tliis  room,  it   was  afterwards  esral)lislied   l»y  tlie 
linetestiiiionv,  was  ''alntiit  30  to  3.")  feet  lonji'  by  alxmt 
1")  feet  wiih'." 

The  testiiiittny  of  ^larketich  is  l»rief  No  weif^ht 
was  ji'iven  tlie  story  by  tliose  wlio  heard  the  witness 
at  N'ictoria. 

Capt.  Cliarles  K.  Haynor  was  «'.\amined  fully  and 
in  (U'tail  relative  to  the  treatment  of  the  cajitains  and 
mates  at  Sitka  in  1S8G  l)y  tlie  autlioritiesof  the  Tnited 
Slates.  Tile  testimony  of  tiiis  witness  l)earin<i'  on 
tliis  sul)ject  was  never  di'nie<l  or  contradicted  in  any 
of  its  (h'tails,  and  throujiliont  tiie  session  of  this  lli;^li 
Commission  at  Victoria  the  account,  as  j>iven  by  Caji- 
tain  Haynor,  of  tlie  occurrences  at  Sitka  was  taken  as 
the  true  history.  Kvery  witness  who  testitit-d  there- 
after, relative  to  this  feature  of  the  claims,  contirmed 
in  some  of  its  details  the  statement  of  Cajitain  Haynor, 
and  denied  it  in  none. 
""«  Captain  Kaynor  .stated  that  the  captains  and  mates 
were  not  confined  at  L'nalaska  prior  to  the  time  that 
they  were  taken  to  Sitka  on  the  revenue  cutter  ('ar- 
il in;  that  he  had  seen  Captain  Oj^ilvie  an<l  the  mate 
Hlake,  of  the  CiirolriHi,  ashore,  and  that  no  orders 
were  j>iven  that  tiiey  should  remain  on  board  their 
vessels. 

1'""  Q.  After  y(m  got  to  Sitka,  Captain  Haynor,  what  steps 
were  taken  by  the  ofBcers  in  regard  to  your  arrest  and 
detention  ? 


PERSONAL   CLAIMS   OF   CAPTAINS    AND   MATES. 


325 


A.  Well,  they  told  us*  that  we  could  consider  ourselves 
under  arrest. 

(f.  Were  you  bound  over  to  ai)|)eiir  f 

A.  Wo  were  bound  over  on  our  own  reeo},'ni/.ance. 

Q.  And  were  you  fjiven  your  liberty  iluring  the  interval? 

A.  Yes,  sir. 

(}.  Did  you  take  advantage  of  that  liberty  f 

A.  We  did.  At  least  for  a  few  days  everybody  went 
around.  We  were  on  our  own  recognizaiK'e,  and  they  went 
for  four  or  live  days  and  then  surrendered  it,  aud  then  they 
let  us  an  around  Just  the  same,  anyway. 

().  What  was  the  object  of  their  surrenderinj;  their 
recognizance? 

A.  VV'ell,  beciause  in-  tJiriiiiijIit  it  irox  rasicr  to  i/o  (imlmtdnil 
xhrp  ill  the  jury  mom  tliiiii  it  inis  to  i/o  on  himril  tin;  ns.sels. 

Q.  Aiul  before  tiiey  surrendered  tiieii'  bail  they  liad  lived 
on  board  their  vessels,  had  tiiey .' 

A.  Yes,  sir. 

(}.  Tliat  includes  Captain  Ogilvie  and  Mate  Itlake? 

A.  Y'es,  sir. 

(y  And,  so  far  as  you  know,  the  otlicers  of  the  other  ships 
tiiat  "vere  there  ? 

A.  Yes,  sir. 

i).  These  ships  were  the  Thornton  and  the  Oniriml.' 

A.  Yes,  sir. 

Q.  Were  they  compelled  to  sleep  in  that  room,  or  to  renuiin 
there — that  is,  before  the  trial  we  are  talking  of  now? 

A.  No,  sir;  they  could  liave  gone  on  board  the  vessel  and 
8lei)t  on  board  her,  or  whatever  they  liked. 

Q.  The  fact  is  that  they  actually  selected  this  place  to 
sleep  in  preference  to  the  vessel? 

A.  Yes,  sir. 

(}.  Diirinii  the  daij  they  irere  coiijiiwil  within  the  limits  of 
the  court ■  ho iixe:' 

A.  Not  (It  (ill. 

().  Afterthearrivalof  the  captains  and  mates  of  the  Tliorn-R.,  4!ts, 
ton  and  Oniranl,  were  they  complained  against  tbrmally?  H- 

A,  Yes,  sir;  they  were. 

(}.  Were  they  arrested  in  the  same  manner  that  you  were? 

A.  Yes.  sir;  they  were. 

Q.  Were  they  restrained  of  their  liljerty  in  any  iray  np  to  the 
time  of  their  trial.' 

A.  Xo,  sir. 

(}.  Now,  Just  tell  the  Commissioners  about  where  the  mates 
and  captains  slept  at  Sitka  before  they  went  to  the  Jury 
room.     I  believe   the  Ciirolena,  the  Onirard,  and  Thornton 


liiio 


326  PERSONAL    ('I.AIMS    OF    CAPTAINS    AN'1>    MATKS. 

were  left  at  rimliiskn,m»  ))rioi'  to  the  time  they  went  to  tlie 
Jury  room  wlicre  did  tiiese  men  sleeit? 

A.  They  slept  iiboiird  the  Sail  IHvi/o. 

I}.  Tliiit  is  your  bout :' 

A.   Yes,  sir. 

if.  Dill  tliey  hiive  tlieir  own  lieddiiip,? 

A.   Ves,  sir. 

if.  And  about  liow  lonj;'  di<l  they  stay  on  the  Nan  l>h'<i<t 
before  tiiey  decided  to  yd  into  tliejury  room  and  sleep? 

A.  I  think  it  was  three  days. 

if.  When  they  surrendered  tluiir  jiersonal  Itail  and  asked 
to  be  allowed  to  sleep  at  the  jail,  did  they? 

A.  Ves,  sir. 

i).  Now,  is  that  just  the  way  the  tliinj;  occurred,  or  were 
they  couiiM'lIed  to  pi  to  the  Jury  room  an*l  sleep? 

A.  No,  sir:  that  is  Just  the  way  the  thing  occurred;  they 
doiu'  it  of  theii'  own  self;  asked  the  marshal  to  let  them 
sleep  there  and  also  eat  there. 

(i>.  And  he  complied  with  their  request  ? 

A.  Yes,  sir. 

(^.  It  was  a  step  taken  for  their  personal  comtbrt  was  it  ? 

A.  Ves,  sir.  They  done  it  because  they  did  not  like — of 
<•our.se  the  Smi  lUeijo  was  anchored  some  ways  otl'shore — 
and  they  didn't  like  to  pull  back  aiul  forth  aboard  of  her  to 
get  their  meals  aiul  sleep.  /  (tls<i  ihme  it  tnysvlf  on  the  same 
acfoiinl. 

().  When  they  went  into  the  Jury  room  dul  they  take  the 
same  beddinjj  that  they  brought  oil'  their  respective  boats  oft' 
the  .SV(M  IHctjo.' 

A.  They  did:  yes,  sir. 

if.  Ami  during  the  time  that  they  slept  in  the  jury  room 
did  they  make  use  of  this  bedding? 

A.  V(\s,  sir;  all  the  time. 

(v>.  Was  there  any  abuse  ou  the  part  of  any  Federal  officer 
there  ? 

A.  I  uever  seen  any  uor  ever  heard  tell  of  any. 

('ii|»tiiiii  Rayiior  tlicu  saiil  that  tlnTc  was  no  coiu- 
plaiiit  ahoiit  the  food  that  the  men  were  sui)])lie(l 
with. 

R.,  500,  line     Q.  Were  there  any  complaints  made  by  any  of  the  unites 
43.  or  cai)tains  as  to  the  manner  iu  which  they  were  treated 

there? 
A.  No,  sir. 

i).  Or  the  words  that  were  used  iu  reference  to  them? 
A.  No,  sir;  I  never  heard  of  them. 


FEKSOXAL    CLAIMS    OK    CAI'TAINS    AND    MATES. 


327 


Ij,  hid  you  hiur  Ihv  word  "  rohbvm''  imed  in  the  vharijv  of  the 
ioiirtf 
A.  /  (lid  not;  no  unch  word, 

'I'Ik'  ('iiptiiiiis  aiid   niiiti's  wtTo  then  trii'd  by  the 

COUl't. 

().  What  liberty  did  tliey  liavi'! 

A.  VVt'll,  they  could  no  all  over  tlio  tojt  of  tlie  courthouse, 
ill  the  court  room,  and  all  around  (iiu  around  the  porch,  <lo\vu 
in  the  yard,  in  fact  anywiieres  in  Sitiva,  l)y  goiufj  and  asking 
permission  of  the  marshal. 

(J.  I>id  !/oit  vnv  xir  anif  of  thvui-  men  outnide  of  ilic  Jury 
room,  or  owoi/  from  the  immtdiate  rieiiiitji  of  the  rourt-houne 
durimj  thin  time  of  eoiifnemeiit  after  that  fimt  nenteuce.' 

A.    Yis,  nir, 

i).    Where  did  i/oii  see  them:' 

A.  Well,  I  hare  seen  them  out  in  the  street  iwonnd  Sithit  and 
in  different  stores;  1  couldn't  give  the  name  of  the  stores — 
who  kept  them. 

(v>.   hid  I/OII  ijonrself  ijo  out  dnrinf/  that  time.' 

A.   /  did;  yes. 

l}.  Were  any  of  you  locked  in  oi-  guarded  during  that 
tinu- .' 

A.  Well,  there  was  none  of  us  locked  in  at  all;  they  had 
a  nnui  up  tiiere  for  a  few  days  who  was  supposed  to  lie  a 
guard,  but  he  never  stopped  us  fron  going  anywheres  that 
we  wanted  to. 

Q.  After  the  lifteen  days  elapsed  which  you  si)eak  of  as 
being  the  time  you  believed  the  other  mates  and  captains 
served,  tell  us  what  occurred;  how  they  were  released  .' 

A.  Well,  the  nuiishal  released  them,  and  they  weni  right 
away  on  the  steamer  to  Victoria. 

(}.  Were  they  released  in  order  to  take  a  l)oat  to  Victoria; 
did  it  not  leave  the  next  day? 

A.  Yes,  sir;  they  were  released  at  the  time  the  steamer 
was  tiiere  so  they  could  take  the  boat  and  not  be  detained  in 
Sitka  any  longer  than  possible. 

i).  After  the  sentence  of  the  court  was  there  any  ditl'eience 
in  the  treatment  of  the  men,  both  as  to  the  fare  that  they 
were  given  and  as  to  tlie  i)lace  where  they  were  allowed  to 
sleep  and  as  to  the  bedding  they  had  ? 

A.  No,  sir;  none  at  all. 

Beariiio-  iqxui  tlie  chum  that  the  »'aj)tiiiiis  and  mates 
were  juit  in  jail  an<l  kept  nnder  hick  and  key,  tlie 
story  of  the  disa|)})earance  of  Capt.  Jjunes  Oyilvie 


0J\ 


M^ 


32H 


I'KKSONAI,   CLAIMS   OK    lAl'TAINS    AND   MATES. 


K.,   l!t!t, 


\i\ 


R.,  511, 
55. 


R.,  637, 
tiO. 


''""(lisclusfx  tli.it  tlit'sc  iiicii  were  iillnwcil  t(i  j>'(»  iih  tli('\- 
(U'sircil  wliilc  tiu'V  were  in  Sitkii.  ('iiittiiiii  ( )<iilvic 
Wiis  ill  with  11  tiitiil  (lisciiscwlicii  lioirriNcd  iit  Uiiiiliisk!!. 
The  surgeon  of  the  Conrin  took  liiiii  iiliniin!  tlic  cutter 
iUiil  ciircd  tor  him  on  the  voyii<i('  to  Sitkii.  After  tlut 
iirriviil  iit  Sitkii,  ('ii|it!iiii  ();iilvie  (lisii|>)iciireil.  I.jiter 
liis  Itody  wiis  t'oiinil  in  the  wooiU  iicMr  Sitk.i. 

("ross-e\iiinini'(l  rehltive  to  the  tre;itiiient  tluit  wiis 
itecoi'tled  the  musters  lUid  mutes,  ('ii|itiiin  liii\  nor  snid: 

"ne  ().  Now,  then,  (lid  vmii  have  ti  fruiiiil  ever  you  before  tlie 
trial .' 

A,  No.  sir. 

(}.  The  door  was  never  hn-ked? 

A,  No.  sir. 

*).  Did  11  };iiard  stay  there  at  night:' 

A.   Yes.  sir. 

().  Was  tlie  jiiiard  uniied  .' 

A.   He  was  not. 

i}.  Wlieii  you  went  out  did  the  yunrd  pi  with  you  if 

A.  No,  sir. 

(,».  Wiiodid? 

A.  Nobody. 

().  Who  went  out  ? 

A.  1  went  out  inysell'. 

(j).  Anybody  else  with  you  .' 

A.  In  t'aet  they  all  went  out. 

().  Vou  had  to  iivt  leave? 

A.  I  had  to  ask  the  marshal;  and  by  askinft  tiie  marshal 
we  eon  Id  go  out. 

(i>.  I»id  yon  have  a  light  at  niyht? 

A.   Yes,  sir. 

().  Did  you  sh-eji  on  tiie  tloor  ? 

A.  We  slept  on  a  mattress  on  the  lloor;  yes,  sir. 

Miiriiktiidi  tcstiiied  that  while  iit  riiiiliiikii  the 
crew  were  coiitiiie(l  ahoiinl  the  Onward  iind  were 
iiniii)le  to  leave  the  shi|i,  and  that  all  the  crews  were 
conliiied  iihoiird  their  res|)ective  vessels. 

-Fumes  .Miinjii-r.  u  witness  called  on  liehult"  of  Great 
Uritiiin,  testified: 

line     (,J.  Will  y<ni  tell  us.  .Mr.  Manger,  how  long  after  you  got 
into  rnalaska  did  you  leave  on  the  <S7.  I'aiil.' 
A.  Ab(tut  a  week,  1  think. 


l'KK.Si)NAI.   CLAIMS    OK   CAPTAINS    ANU    MATKS. 


3-J'J 


A. 

Q. 

A. 
if. 
A. 


And  you  Htiived  on  tliu  VdivlcuH  all  timt  time? 

X... 

Iliul  yon  lieoii  aslimc' 

Yes. 


Ifitivc  to  the  seizure  n..  loii.iinn 


ISai'k  and  t'orf li  1 
Ve.s;  out  llsiiin^. 

("apt.  lidiiis  (  Hseii,  testityiii^i'  n 
of  the  Ain/d  llcr/:  in  ISST,  said; 

<^,  Wlit'ie  did  you  .sleep? 

A.  Oil  the  lloor  in  the  Jury  room  on  <»nr  own  blankets, 
Tlie  jury  room  was  about  half  the  si/e  this  hall. 

(j.  How  lon^  did  yon  remain  in  that  room? 

A.  Intil  the  Ktth  or  l-'tli  of  Septeinlier. 

(|J.  Could  you  have  tjot  away  before? 

A.  No,  sir. 

(}.  What  diseipline  was  there  while  you  were  in  that  room ; 
had  you  to  be  in  at  any  lioiir.' 

A.  1  tlid  not  hear  anythiiif;'  to  that  etleet. 

^j,    Yoii  come  anil  irciil  an  i/oii  plvtisiil .' 

A.    Yvs.     Thrrv  iron  iioriHt  fiction  mmlc  oh  mc  that  f  heard. 

i).  Were  you  ever  tried? 

A.  Well,  the  Hush  arrived  and  I  was  up  for  trial  next  day. 
In  fart,  they  were  try  in  j.'  the  case  of  the  Sdi/wiiril,  and  1 
supposed  I  would  come  next.  The  mail  steamer  AiKnoinla 
arrived  and  the  .iud;j;e  ad.ioiirned  the  court  until  he  would 
receive  some  mails.  The  next  day  1  was  informed  by  Captain 
Warren  that  we  were  ch-ar  to  go  any  place. 

(}.  You  were  told  that  without  goiiif;-  into  court? 

A.  Yes,  sir. 

i).  And  you  immediately  went  home? 

A.  As  soon  as  the  nuiil  steamer  was  leady  to  leave  we  all 
went  on  board,  myself  and  the  mate  and  Ca[itain  Warren, 
and  the  captain  and  the  mate  of  the  Stijiicartl. 

i).  Who  paid  your  passage? 

A.  Captain  Warren  at  the  time  went  good  for  it,  and  I  had 
to  pay  it  myself  on  my  return  to  Victoria,  as  far  as  I  can 
recollect. 

(}.  When  did  you  get  to  Victoria? 

A.  I  can  not  say  i)ositively,  but  I  think  it  was  in  the 
neighborhood  of  the  20th  of  September. 

(}.    Was  a  (juartl  placed  oref  jjOH? 

A.  No,  sir. 

ii.   Were  the  doors  locked.' 

A.  Xo. 

(f.  YoH  could  come  and  go  as  you  pleased .' 

A.  Yes;  I  heliere  we  could.     In  the  daytime  we  did  so, 
B  s 42 


B.,  1061,  li^* 
H. 


330 


PERSONAL    CLAIMS    OK    CAl'TAINS    AND    MATES. 


i).  How  do  yoH  know  tliiit  when  you  Inul  no  j^uard  placed 
over  yon  ? 

A.  Well,  .ludge  Dawson  told  us  at  the  time  we  arrived 
there  that  we  weie  in  charge  of  the  I'nited  States  marshal. 
That  is  the  words  lie  used. 

().  lloiv  iliil  the  I'liitrd  Stiitex  marxhal  slioir  that  he  IkkI  i/oh 
ill  rliari/f  ! 

A.  M'(7/,  hij  siipiHirtiiHi  iin  in  food.  I  xiipiiose,  an  Idikj  as  ire 
inrc  tliiri: 

Q.  And  you  were  allowed  to  go  about  the  streets? 

A.  Yes.  sir. 

i).  And  you  were  allowed  to  go  anywhere  you  plea.sed  '! 

A.  Sitka  is  on  an  island,  and  we  could  not  go  any  further, 
i;  ,1065, line  You  never  went  up  to  Indian  Hiver? 

■'■  A.  Yes,  I  did. 

i).  I>id  not  anvone  stop  vou? 

A.  No. 

Q.  Were  you  ever  interfered  with  in  any  such  trij)  you 
took  about  Sitka  '. 

A.  Not  that  1  remember;  no,  we  were  not. 

Q.  Were  you  ever  tried  '. 

A.  No,  sir:  but  the  11'.  /'.  iSiii/irard  was  on  trial  that  day. 

(-}.  \\\'ie  any  one  of  the  uiasters  or  the  mates  tried? 

A.  No,  sir. 

H.,  u)97,  liue      AixUvw    1 ).   Laiiiii-,  rcstitVino"  in   liis  own  lu'lialt', 
sfiid: 

i).  What  was  done  with  the  schooner? 

A.  She  was  brought  inside,  into  Sitka  Harbor. 

Q.  "What  was  done  with  you  on  that  inorniri^  ? 

A.  We  got  in  there  between  7  and  8  o'clock.  The  trial 
was  coming  off  of  tiie  crew  of  the  Aiiiia  Hirk  and  the  Chiil- 
leiif/i:  and  they  tried  us  the  same  »biy. 

(,>.  How  di(l  you  know  you  were  going  to  be  tried;  what 
notice  was  given  you  '! 

A.  The  deimty  nmrshal  says,  "  Yon  better  come  up  to  tlie 
court,  the  trial  is  going  on  of  the  other  two  vessels,  and  they 
will  try  you  at  the  same  tinu'."    So  we  went  up  in  the  court. 

().  Wlmt  iiappened  when  you  got  into  court? 

A.  We  were  asked  by  the  judge — Judge  Dawson — if  we 
were  sealing,  ami  we  told  him  we  w<!nt  there  to  hunt — to 
S"al:  they  all  gaxc  the  same  answer. 

().  What  hai)i)ened  after  that .' 

A.  We  were  bound  over  to  stay  in  Sitka  until  tlu'  Irtish 
arrived.  The  Judge  told  us  to  behave  ourselves  ami  we 
would  lie  all  right.  ' 

().  How  long  did  you  stay  in  Sitka? 


PKKSONAL    <JI-AIMS    i)V    CAPTAINS    AND    MATHS. 


331 


A.  I'roiii-Iiily  initilOctohor;  until  tlie  triiil  came  off;  until 
the  l\'i(sli  ciune  down, 

if.  Vou  say  Unit  in  1S87  you  (iiinio  away  Iroin  tiitka  in  tlie  l.'.,_ii>!),v,  line 
month  of  ( )ctol)er  ?  •*"■ 

A.  For  jiood;  yes. 

(}.  Ifow  do  you  li\  that  date.' 

A.  I>(^cause  we  all  eaint!  away  tojtether;  the  only  one  we 
left  was  Oaptain  Feiey. 

().  Vou  say  you  r.inte  away  lor  jiood  in  October.  Did  you 
come  away  hefore  li;;:;  '. 

A.   I  did;   I  ciune  iiway  in  Aujiust. 

(f.  Mow  loUK' dill  you  stay  away  then? 

A.  I  arrived  here  (N'ietoria)  on  Saturday  and  I  was  on  my 
way  back  on  Monday. 

Q.   Why  did  you  j;o  back? 

A.  To  .stand  trial? 

Q.  Why  did  you  conu'  away? 

A.  1  went  to  ,Iudj;e  Dawson  aiul  asked  him  for  jwuMnis 
sion  to  (!ome  home  ami  see  my  people,  ami  he  said  there 
was  no  troulde  as  lonu  as  1  j:ave  my  word  and  honor  to  imni' 
back  and  stand  trial;  and  1  did.  and  went  back  -.wni  stood 
trial  when  it  C(une  olf. 

(J.  Where  did  you  stay  in  Sitka  while  you  were  there?        W.  iniis,  Uno 

A.  In  the  barracks,  in    jail.     1   lived  with  the  marslia'.     '"'*■ 
They  jiave  us  the. jury  room  to  live  in 

(.).  And  furnished  nou  with  provisions? 

A.   Ves. 

().  You  had  liberty  to  leave  the  barracks? 

A.  Ves;  we  <'onld  ^o  all  over  Sitl<a,  wherever  we  pleasi'd, 
as  lou}"'  as  we  behaved  ourselves. 

().  Did  you  have  to  furnish  a  b(Uid  wlt-Mi  you  left  Sitka  to 
cimie  to  N'ictoria  ? 

A.  Mo;  only  ^I'ave  our  own  recoy;iii/ance. 

Micliiicl  F.  Kccl'c,   call**!!    ;.-   a  witness    in   fii*»  mvii  K.  ll-'i.  lim- 
bclialf,  tcstiliiMl:  ''*• 

Q.  After  you  <i'ot  tc  .Sitka,  tell  us  what  wn«-  d^m*'  to  you? 

A.  We  were  taken  t»«>forc  th*-'  marshal  tUe  Mtglfur  we  arrived 
there. 

Q.   Who  took  you? 

A.  The  olllcer  titat  had  •■liiWtfe  of  th*  sehoon*ii'.  ftf^Kik 
us  to  the  marshal,  btr  we  4id  w«'iT  see  tin-  niar.'^lial,  and  *re 
came  back  on  board  tiif  CK^h'H»ir-  with  the  oHh-er. 

(}.  When  \iMi  ,  ame  b^-k  *hat  did  yon  do? 

A,  Stayed  on  the  ship  that  Hijilin 

Q.  The  next  day  what  did  you  do? 

A.  The  next  da,\  'U  the  day  alter  we  were  broujjht  before 
.Iiidge  Dawson,     1  think  it  was  tlte  day  after. 


v^JlAfSi^ 


>  I 


■fi 


'1. 


^in'> 


33 


PERSONAL    CI-AIMS    OF    CAITAINS    AXU    MATES. 


IJ.,  IILM 


(J.  Wliat  Wiis  (lone  wifli  you  when  you  got  befon'  Judge 
Diiwsou  t 

A.  Wi"  were  cliaigcd  with  swiliug  illegally  in  Bering  Sea, 
and  told  we  would  liave  to  wait  lor  our  trial  until  tlie  h'loih 
would  ani\t'  tlieic. 

i).  Was  tliat  told  to  you  iR'isonally .' 

A.   It  was  told  to  us  all  when  we  were  in  the  eourt  house. 

^).  Where  were  you  sent  to:' 

A.  We  were  sent  nowhi-re.  We  were  let  go  anywhere  we 
liked  on  our  own  hail. 

<^^.   Did  you  gi\  e  bail. 

A.  There  was  no  giving  in  it.  I  had  iH)thing  to  give.  !Ie 
told  lis  lie  would  let  us  out  on  our  own  bonds  of  >*.■)(>(». 

(^>.   Did  .\on  conn-  back  before  the  eonrt  again? 

A.  We  iiad  to  go  back  two  days  alterward. 

Q.  Wliat  hai)i)ened  tlien? 

A.    We    were   geiting  hungry,   as  there    was   nothing  on 
l)oar(l    the  ('luillciinf.  and  we   had  to   go  ami  see  what  the 
judge  was  going  to  do  for  us. 

<^  What  did  you  .say  to  the, 'udge? 

A.  Wetoldhini  how  we  were  situated;  th.  i  ".  ''ad  nothing 
to  cat  ami  int  place  to  stay,  and  he  handfc!  is  f/er  to  the 
inarHhal. 

().  Where  did  the  marshal  take  you  / 

.\.  The  niarsha!  showed  us  a  place  in  the  court-bouse. 

ii.  That  is  in  the  grand-Jury  ro(un .' 

A.  Yes. 

i).  You  weie  allowed  to  sleeit  there,  were  you? 

A.   Ves. 

Q.  I  believe  there  was  not  a  guard  imt  over  you? 

A.  N(.. 

(,).  Did  thev  supph'  you  with  food? 

.\.   Ves. 

(^>.  And  up  to  w  hat  time  did  you  stay  in  that  way  in  Sitka? 

.\.   1  think  it  was  the  I'-'th  of  Seiitember  w<'  left, 
line      (^>.   Ihniiiii  tlii'  (hti/limt  iinu   irere  not  comii'llcd  to  stay  in 


the  room  . 
A.  No. 


fee  could  I/O  iit  iiiid  out  irhciiiTt 


lilcd. 


().  Around  the  stmts  of  >Sill,(i , 
A.    JV.S. 

(^>.  W'iierc  did  you  take  your  meals? 

A.   In  sonu'  room  in   the  building;  I   do  m)t   know  what 
])la<'e  it  was. 

(.>.  Wa.s  it  m»t  with  the  marshal? 


A. 


vo:  not  with  him 


Q.  You  had   the  same  thing.H.  practically,  as  the  marshal 
had:  yon  had  the  same  sort  of  table? 


PERSONAL   CLAIMS    OF   CAPTAINS   ANIJ   MATES. 


333 


A.  As  far  as  I  know.  yes. 
().  NN'as  ii  (al)lo  set  for  you? 
.\.   Yes. 

<i>.  And  you  had  eliairs  to  sit  dcwu  to  the  tabic  .' 
A.  Ves. 

Q.  And  a  table  well  provided  foi'  you? 
A.  Ves. 

().  And  conilbrtablc  I'of  von  to  I'at  tht'i-e? 
A.  Ves. 

(}.  Tlitn-e   was    no   f>uard    iiecoiupanied    you    around    the 
streets .' 
A.  :So. 

i).  You  used  to  jio  out  lishinj;'? 
A.   If  we  felt  that  way  we  could  j^o  tishinj^. 
Q.  As  a  matter  of  fact,  some  of  them  did  go  lishiuR? 
A.   Yes. 

Capt.  Charles   E.   h'ayiuir  ti'stilicd  relative  to  tlie 
treatnieut  acconled  the  captains  and  niatesot'the  seized  ^^x}-^^'  ''"•' 
schoiiners  ni  18^7: 

(i>.  Were  you  arraigned  in  ISST,  or  released  on  a  bail  boud  ? 

A.   I  never  was  either. 

Q.  So  far  as  you  know,  were  auy  of  the  nuites  or  captains 
that  were  taken  to  Sitka  in  1S87.  during  your  presence,  ar- 
raigned or  bound  over  to  ajipear  at  some  later  time? 

A.  No,  sir. 

Captain  Haynorwas  testifying'  rohitivo  to  p'uci'cd- 
inw  after  he  arrived  thereon  the  .l///r  7.  Almi;  wliich ''•:^^"'l' ''"'" 
was  seized  on  rlie  '2i)U\  ot  Aii>:iist. 

Cii])t.  .fanu's  I).  \\'arren,  examined  relative  tn  the  K.,  1207.  line 
treatment  of  the  masters  and  mates  ii.  1S87,  said:  ^" 

Q.  After  the  seizure  of  the  vessels  in  1887  did  you  see  the 
captains  and  mates  there  in  Sitka  '! 

A.  Yes. 

i).  They  were  all  in  Sitka  together? 

A.  Yes;  1  don't  reniemher  how  many,  but  1  know  tliey 
were  there. 

Q.  And  icor  then  in  cnslodi/,  <uiii  of  lliem,  Hiiihr  arrcfil  in 
mil/  iriii/,  (ir  nutrainid  of' their  lilxrti/!' 

A.  A'o  »/()/•(  thtni  lioiiiiil  orcr,  I  think. 

Q.  1  )o  you  know  whether  anything  was  signed  over  before 
the  order  for  release  canu' ". 

A.  1  would  not  like  to  say  jiositive. 

Q.  You  were  treated  like  other  captains  there,  were  you 


334 


PEKSONAL  CLAIMS  OF  CAPTAINS  AND  MATES. 


A.  I  k;i()\v  what  was  done  witli  me. 

Q.  Voii  were  not  made  a  pet  of  si)eeially '! 

A.  1  don't  know  tliat  I  was. 

(}.  And  what  was  tlie  treatment  aceorded.  so  far  as  you 
knew — you  were  eajttain  of  the  larjjest  lU^ct  that  went  in  the 
]iort  at  that  time — by  tlie  United  States  antliorities? 

A.  1  was  calk'd  into  court,  and  tlie  caijtaiiis  and  mates  witli 
me,  and  we  were  bound  over  in  our  own  recofini/ance  to 
apiiear  at  tlie  trial. 

(}.  Did  you  sipi  anythinj;? 

A.  I  don't  remember  sif;nin,u  anything;  I  remember  we 
had  to  hold  ii]>  our  hand  in  court. 

().  And  then  you  were  told  to  j;o  wherever  you  liked? 

A.  As  lonji'  as  we  were  back  at  the  trial. 

i).  llow  loll};'  after  that  were  you  notified  of  your  release.' 

A.  1  think  it  is  the  !)tli  of  September  that  we  were  notilied 
of  our  lelease. 

<i>.   Vou  are  pretty  sure  about  that  date? 

A.  1  can  soon  tell.  I  think  that  is  the  date.  |E(^fers  to 
memoiiindum.|  (»n  the  !)th  of  September  we  were  called  iu 
and  released. 

().  Were  you  all  tojjether  there,  the  captains  and  mates  of 
the  detained  vessels? 

A.  1  think  we  were.  I  think  all  the  captains  and  mates 
tl'atwerc  there  were  released;  at  least  my  entry  goes  in  that 
way.     VVe  were  all  called  in. 

Q.  And  told  you  were  released? 

A.  1  should  suppose  that  means  the  lot. 

Q.  ]Vi;ir  you  slitil  up  inant/  room, or  tohl  to  yo  to  nnij  room, 
or  oin/tliiiifi  of  tliiit  norf.' 

A.  /  ir((K  (dloiriil  to  (jo  irlivri'ver  T  s<iir  Jit. 

^}.  And  the  others  iriri\  too.' 

A.   /  tlnnl:  the  ntlirrx  irt-rc  iiwlrr  the  same  liberti/. 

(}.  Ami  ici  :r  i/ou  Inatiil  in  n  iiolito  ond  courteous  iroy  by  the 
United  Utotes  mfirshal  mid  authorities:' 

A.  /  hiire  no  fault  to  find  with  that  myself. 

Tlicsc  fliiiiHs,  which,  wluMi  on;4'iiuiIly  presented  to 

the  (ioveniineiit  at  ( )tta\vM.  lor  the  purpose^  of  heiiiy 

t'orwarded  to  tin-  I  Ionic  fiovennuent,  were  re(hi('ed  in 

amount  at  tlie  retpn-st  of  the  ])rivy  eonncil  for  Cana  la, 

„  ,  .  .         hecanse   thev  were   (h'eined   excessive,   and   refcrrefl 
\  ol.  o,  Amer-  .         .  i  •  i         i    •  i  i 

iiiin  re-  hack  to  the  ])arties  making''  the  clanns,  who  consenteil 
!'r'eain'*s^^"  "  re(hict!on  of  one-half,  have  without  any  apparent 
TiiWuiiiili-eason  heeii  ayain    increased   from  the   time   of  the 

at  I'aris,  p.  ...  X.  \-'    » 

i>u.  presentation  at  \  ictona. 


HEKSONAL,    CLAIMS    OF    L'Al'TAINS    AND    MATES. 

Tlic  following'  sriiteiiuMi*.  sliows  tlic  increase  in  the 
ainouiit  (Icniiiuilcd  l.y  tlu'st'  claiiiiiints  at  tlie  vai'ic  is 
staj^vs  (if  tlic  arliitratidii  prncccdinjis  hctwccii  the  two 
Gnvcninu'iits. 


335 


Moiiroi- ....|  ^i,[m 

Miirki'l  ich ;  -.1.  .-,11(1 

(iuttnrilisrll 4   (n}|, 

N'lniiiin ]...V.]]][  -z  .-illil 

O^zilvii'  (difd  ln'Cnn-  ti-hih •'  -|im 

;'!'il<'' ' '.'.'..'.'.'.  i.'Mi 

\\  iirrCll     .1    i;;{r, 

|!>'ii'\ ....'.'/.'.'.[['.'..'  ]'.m\ 

l^^'y -,  11(111 

I'""1SJ l.dlio 

'J}"™ a,  will 

■Kci'li- I .  ,11111 

!<>'"• 2.(1011 

LlllKlli.Mg ..,  111,11 


iihii  at 

Viixil 

iIiTla. 

I'iiiiiii. 

*L'.  .'lUll 

$4.  llOil 

:;,  rioo 

4.  01  111 

•.'.  r.oii  , 

4.000 

•J.  500  1 

4,1100 

U,  31111  ' 

4,000 

2.  .'.Oil  , 

4.(1110 

;{.  11(111  1 

4.0011 

*j,  1100  ■ 

4,01111 

'.',11110 

4.  iimO 

■_'.  omi 

4.0(1(1 

■J.  Olio 

4.1100 

2.  0(1(1 

4.  000 

■J,  (Hill 

4. 000 

■J,  (JllO 

3,000 

Tlic  observations  clscwlicrc  nunU:'  in  tliis  Arjiumcnt. 
rclari\c  to  tlic  cxtui'tionatc  nature  of  tlu'  claims  pn-- 
sented  by  this  class  of  men  to  international  tribnnals, 
apply  with  add.-il  weijiht  to  the  claims  of  these  mas- 
ters and  mates  for  damaj^es  arising'  from  alleged  ille- 
gal arrest  and  iinprisoiiinent. 

The  I'liited  States  assert  that  its  oHicers  acted  en- 
tirely without  malice  at  Sitka,  that  the  cajitaiiis  and 
mates  were  never  inijirisoned  or  restrained  of  their 
liberty,  and  that  tiiere  was  no  detention  except  that 
they  remained  in  Sitka  for  a  time.  The  claimants 
have  shown  no  actual  damage,  and  no  snm  can  l)e 
awarded  for  ])aiii  and  suH'ering  or  injured  feelin"s. 


The  argument  of  the  motion  made  to  dismiss  the 
claim  of  .lames  (iaiidin  from  the  coiisidei'atioii  of  the 
High  Commission  was  jiostponeil  until  the  linal  argu- 
ment. 

The  rnite(i   States  contend  that  this  cdaim  is  not I'leadings, 
lirojierly  before  tiiis  ( 'ommission.  jj"'"'    ^"■ 


.;! 


ff'" 


i 

1;     I 


336 


PERSONAL    CLAIMS    OF    CAPTAINS    AND    MATES. 


K.,  1808,  Hue  A  stipuliitio.'i  conseutiuy  that  the  Hi<i'h  C'oniniis- 
^^'  sioiu'V.s  might  report  the  facts  to  their  resj)oi'tive  Gov- 

erinneiits  re«j;iir(liii<i-  this  diiiiu  was  iiled. 

K.,  wiB,  lino  'riie  Record  disck)ses  that  Captain  Gaudiu  arrived 
in  Sitka  on  \\\v  Mx  diiy  of  September,  1S87,  and  k'ft 
tVr  \ietoria  on  the  !'tli  day  of  Septendn-r;  that  he 
n.'ver  was  restrained  of  his  Hberty  in  any  way;  that 
he  never  was  detained  by  the  anthorities  of  the  United 
States,  and  that  lie  suffered  no  hardship. 


the  carol  bna. 

Claim  No.  1. 

'riic  |tivsoiitfiti(>iH>t'  tliis  cliiiiii,  in  tlic  Arij'imu'iit  oti 
Ix'liiilt'  ut'  (ir«'iit  IJi'itiiiii,  riidicitlly  ditlcrs  troiii  tlie 
cliiini  iis  ])r('sei.t(.'(l  l»y  tlii'  testimony  ot'  the  cliiinuints 
jit  \'ict(>riii.  '1  lie  evidence  oti'ered  relntin^'  to  tlie  cost 
ol"  supplying-  Mnnsie's  tnidini;-  stiition,  the  cost  of 
ecliiipitini;'  ii  senlinu'  vesscd  tor  ii  luintini;'  voviij^c  on 
the  west  const  of  X'jincoiiver  Isltind  Ix'foi'c  the  de- 
partm-e  of  the  sliip  for  the  voviin(.  to  Uerin;;-  Sea, 
and  the  vouchers  placed  in  evidence,  aiiLiTeiiiitinij: 
about  !^6,00(),  wliich,  accordin;^'  to  tlie  (daiinants,  rep- 
resented tht;  cost  of  outlittinu'  this  small  schoon<'r  of 
2S  tons  for  a  sealini;'  voyage  in  UeriuL;'  Sea  of  two 
mouths,  receive  no  consideration  in  the  Uritish 
Arji'ument. 

'I'he  ('<iri)lfi/(i  (Mitered  IJeriiiu' Sea  in  lSS(i,  about  the  k.,  uti 
l.'Uh  of  June,  and  commenced  hiuitiiifj;  aljout  the  1st 
of  .July.      She  was  seized  on   the  1st  da\"  ot'  Auji'iist 
by  the  I'nited  States  revenue  cutter  (onriu  for  viola- 
tion of  the  nnuiicipal  laws  of  the  I'uited   States  pro- 
hii»itiny'  tlie  takin^;-  of  t'ur  seals  in   IJei'inji'  Sea.     Tlu! 
cutter  took    her    to    I'nalaska,    dismaiuled    her.    and 
thereafter  the  vessel,  outiit,  and  cariid  were  lil)ele(l  |)\-U...">2 
the  (Jovernment  of  the  Tniteil  States  in   ^'.i    riiited 
States  district  court  of  Alaska.     'Flu 
arti(des  on  board,  as  pri'|)are(' 
cutter,  is  in  e\  ideiice. 

The  ilecree  condemniuii'  the  \-essel  was  entered  on 
the  4th  day  of  ( )ctobei-,  ls,s(i.  She  then  Ix'came  a 
total  loss  to  her  owners. 

The  property  described  in  the  inventory  is  the  run- 

B  s 43  "  337 


line 
ti(i.         .\  II  - 

SWIM- of  till' 

r  II  i  t  o  (I 
S  t  a  t  !■  s. 
I'leadiii  us 
No.  1. 


mventor\-  ot  thel'-x-  !•'.  '■•  !«• 

,  ..         •       .     ,         C'l.   No.    1, 

)\   the  oilicers  ot   the     ]:xh i M t-*, 


m 


338 


Kx.    No. 
(i.    It. 

N".  1; 
liibitK, 
27. 


K.,  40.-. 
(iO. 


Tlio  ])roi)t'rty  tiiki'ii,  not  iiicliidiMl  jis  ii  ))iirt  of  the 

vcssi'l,  is  set  out  in  !i  receipt  jiiveii  to  ( "iiptitiii  Al)l)ey, 

^,y  coiiiniinKlin^i'  the  rt'venue  cutter  ( 'unriii,  1)\-  the  Tnited 

Kx- Stiite.s  lUiir.shiil.      The   propertv  there  lU'sci'ihed  coii- 

•'•  si.sts  ot"  GS")  t'ur-seiil  skins,  \'2  ])U])  skins,  1  luiir-senl 

skin,  1  viiwl.  inventoried  l)y  error,  4  canoes,  4  jiiitl's, 

2  speMrs.  i;{  hill's  of  tlonr,  2  boxes  of  l)r('iid,  etc.     'I'he 

other  artich's  named  are  either  of  no  vahie  or  l)elon<^ 

properly  to  tlie  ship. 


li..   5K4, 
53. 


j)ur])o.se  of  supplyinji'  liie   crew  of  the  ('(trohiia   on 

their  trip  to  San   Francisc(t,  where  they  were  sent  at 

tile  expense  of  the  Tniteil  State.-;. 

David   litissell,  a   witness  calh'd  on  hehalf  of  the 

claimants,  stated  the  amount  of  provisions  that  were 

line  taken  aboard  the  .S7.  I'aitl.     The  value  of  the  articles 

is  inconsidera1)le. 

'v\ I    1,,.: t..4...i   1 1.   1.   ..     ii. - 


li..  nvi 


neeii    cMs<-usseu    ar    lenmn    ui  anorner  pan    oi    tins 
Ar;iument. 

The  amount  charu'eil  for  the  four  canoes  and  outfit 

'"'"is  exoi'ltitant.     Captain  Warren  testified  that  820  was 

the  cost  of  the  canoe  on  the  Sai/wanl.     In  the  sched- 


TlIK   CAKOMiNA, 


339 


liles  pi't.'pJirtMl  l»y  tlic  owner  of  tlic  Aihi,  the  cliar^ie  is  i{.,  vjoi],  n,,,, 
iiiii(li.',  3  ciiiioi's,  ^4(1;  In-iiiM-  soiuc'wiiiif  over  ^^If)  oiicli.     '-■ 
The  testiiiioiiy  of  otiier  witnesses  in  the  Uecord  sliows 
beyond  (piestion  tliiit  the  viihies   phiced   npon   these 
cniioes  hy  .Mnnsie  w;is  tictitious. 

-lohn  (Jotsfonl  testitieil  tliiit  one  of  the  ciinoes  was 
lion^i'ht  for  him;   that  he  was  tliere  when  it  was  pur- 
chased;  that  "I  liad  the  hiri^cst,  and  1  snppose  con-U..  ■^''<-  lino 
sick'red  a  littU-  the  hest."  -'' 

(),  How  inucli  (lid  it  cost.' 

A.  Eleven  dollais,  I  believe;  thai  is  wiiat  1  umlerstood  tlie 
price  that  was  jtaid  for  liei'. 

lie  further  festilied  tiiat  he  had  knowledf>'e  of  tiie 
vahie  of  canoes,  and  that  these  canoes  which  he  saw 
aboard  tlie   ('(iialriKi,  and  one  of  which  he  used  as  a 
hunter,  were  worth  between  ><1()  and  ^^If)  each.      The  K..  :^"">.  liii« 
price  chariicd  in  tiie  schedule  is  xi'i'2  each.  ''"' 

The  item  "one  boat,  >^1()()"  is  a  chai'iic  inaih-  for  a 
boat  which,  accor(linj>'  to  the  testimony,  was  lasf  before 
tlie  vessel  was  seized.     J ohn  ( 'otsford,  who  was  on  the^^v  38H,  line 
vesst'I  when  seize(|,  said:    '•  1  l)elie\('  that  the  Itoat  was 
lost  on  the  way  up."     The  captain   of  tlie   ('iiri)lcii<( 
wrote  M  letter  at  Tualaska  in  which  he  stated:    •■Tliir- l^-J"'!.  liiu- 
teen  <lavs  after  we  left  Clayoipiot  we  were  in  iierinji' 
Sea;   we  lost   the   boat    from  the    stern."     This   was 
])rior  to  the  seizur*-.      'I'lie  foimdation   for  this  (daim 
is  that  liy  mistake  the  otlicersdf  the  cutter  inventoried 
o«e  boat  as  beloiifi'in;^' to  the  CanilciKi.     The  l)oat  thevEx.,  Li,  line 
inventoried   belonj>-ed    to   the    Tli(ini/'ni.       Iiispectin;^-     Ij^;  ','''^si;'' 
the  inventory  of  the    'J'/ionitaii,  it  will   \)v.  discovered 
that  although  she  carried  four  boats,  onh"  three  were ^';«'!"';''* "", 

1  rill  1     •  1  1       1       1   .  '     ■    1  ■,•,  l)ell!lU       111 

inventoried.      J  lie  claim  made  on  lielialt  ot  the  1  lion/-  (ireat  luit- 

hii  is  for  four  boats.  Hm'.i,^.^'*"' 
The  claim  "Cash,  Ou-ilvie,  >^6<t(),"  is  without  auv  V"'" li;'i  ^'>. 

f'oiuidation  whatever.     ^Mnnsie  testified  that  upon  the  i'o|  j-Aiiiili 

vessel  leaving-  in   May  ()<iilvi('  had    >^')in)  "for  inci-  its,i>iig« lii. 
dental  expenses  and  a<lvancesto  men  on  vovaue,  etc." 
Tliis  money  was  luidoulrtedly  e.xpended  by  the  cup- 


I' 

i 


'i 


|!j:; 

Vl 


K'.,   190, 
(i7. 


340  THE   CAROLKNA. 

tiiiii  of  tlic  slii|i.  'riicrc  is  no  tcstimuiiy  tliiit  ( );;ilvie 
liiid  till'  iiKHicy  iit  tlu'  tiiiic  lit'  the  si-iziiir,  and  unless 
tiic  owners  of  the  sliip  intend  to  clmrjic  the  ollicers  of 
tlie  Uniteil  Stiites  cutter  with  niisii|»|)ro|»riiitin<;-  this 
fund  there  is  no  reiison  for  the  cliiini. 
line  ('!i|itiiin  ();^il\ie  WiUidei'eil  otV  into  the  woods  iit 
Hitkii,  iuiil  Wits  id'terwiU'ds  found  dejid. 

The  Tnited  Stiites  denies  iiny  liiihility  whiitever 
for  this  nioney,  tind  there  is  no  evidence  tliiit  it  Wiis 
ever  in  the  jiossessiou  of  the  I'liiteil  Stiites,  iiud  if  it 
had  lieen  taken  li\-  the  othcers  of  the  I'nited  States 
fi'oin  ('iiptiiin  ( )^il\ie,  it  irati/il  li<irr  lifcii  ntiiiiicd. 

The  chiirjic  for  rifles  iin<l  shotjiuiis  is  out  of  iiU 
|)ro|tortion  to  their  real  viiliie. 

The  item  "HeKcii's  l)ill,  s7f)()"  rests  upon  the  fol- 
low iiij^'  testimony  of  .Munsie: 

!»..  I3it,  line  ii.  Tilt'  contract  with  ^Ir.  Belyea  was  not  in  writing,  I 
*+■  tliinkf 

A.  No;  not  in  writing. 

<i).  It  Wiis  iiiiidc  np  iit  tlic  tinic,  tliongii? 

A.  It  was  nuidt,'  at  tlic  time  lie  uiuleitook  to  look  after  the 
ciise. 

Q.  Yon  arclionnd  to  pay  him  i^'oO? 

A.  Jf  I  do  not  get  the  claim  I  might  not  pay  him;  1  might 
object  to  it. 

ii.  ]5iit  yon  iigreed  to  pay  him  >'7.")(),  at  all  events,  for  his 
services  ? 

A.  There  might  hiive  been  a  condition. 

(i>.  Was  there?  We  (hni't  want  iuiy  statement  its  to  what 
might  be,  but  what  is. 

A.  1  won't  state  positively  whether  I  agreed  to  pay  him; 
positively  whether  the  claims  were  iiiiid  or  were  not  psiid,  but 
I  riither  think  there  was  iiii  understanding  that  it'  they  were 
notpiiid  1  would  not  have  to  jiiiy  him  <iiiite  iis  much. 

i).  Did  you  name  any  amount  that  you  shouhl  pay  him,  at 
all  events? 

A.  1  do  not  remember  that  there  was. 

u.,  inii.  Kei-iirding     the     chiir<>'e    of    Willoujihliv     Chirk 

"Chiiroes  lit  Sitkii,  So()((,"  Aliinsie  testified'  thiit  he 
rejiiirded  the  chiiriic  iis  exce.ssive,  iind  refused  to  jiiiy 
it:  hut  tliiit  Cliirk  seized  some  skins  of  his  in  Sitkii 
and  rather  tluin  have  a  huvsuit  regiirding  the  chiim, 


THK    CAKOLENA. 


341 


he  paid  the  imioiiiit.  'I'liis  sfi/jiiv  ot"  skins  Wiis  iniidc 
scvcnil  yciirs  iit'tcr  iSSd,  iuul  lu'CiUisc  Mr.  .Miiiisic  wns 
williiiji'  t(i  allow  Clark  tt»  scciirt'  tVdiii  him  an  cxdi-lti- 
taiit  sum  tlic  ( lovcriimi'iit  ttf  tlic  riiitcd  Statt-s  is  nut 
lialtlc  to  repay  that  cxorltitaiit  iimoimt,  cxiiciidcd  on 
account  of  his  own  ncjilijicncc   in   not  pi'otcctinji'  his 

illtlTC'StS. 

Tlui  item  >^3i')'2  tor  insurance  covers  the  char<i-e  tor 
a  yeai'.  The  insurance  would  lie  cancele(l  innuedi- 
ately  upon  the  lioat  liein^'  seized  and  the  preuiiiun, 
if  paid  in  advance,  refunded.  'I'lie  polic\-  is  not  in 
evideiu'e.  If  the  owner  is  paid  for  the  \alue  of  the 
skins  taken  before  the  seizure  he  will  receive  the 
lienelit  of  the  insurance  to  that  time. 

The  item  ".I.  I ).  Warren,  expenses  to  Ottawa,  put- 
tinji'  in  claim,  >>\f)2"  is  for  expenses  in  connection  with 
this  claim  ajiainst  the  (Jovernment  of  the  I'nited 
States,  and  can  not  he  allowed. 

The  item  "Time  and  personal  expenses  of  owner, 
82.')(>,"  is  absolutely  without  testimony  showinji'  anv 
time  or  money  expended  in  connection  with  this  claim. 
In  any  event,  the  I'nited  States  is  not  liable  for  the 
time  of  the  claimant  used  in  the  endeavor  to  secure 
from  this  Hi<4'h  Commission  an  award. 

'I'he  item  "Expenses  remainder  of  crcAV,  sv^//  >>5(>," 
is  without  any  testimony  to  support  it. 

The  item  ".SV?//  one-lialf  slop  chest,  >^l(l(),"  is  not 
taken  from  the  Record. 

The  property  aboard  the  schooner  was  inventoried 
by  the  United  States  otHcers,  and  the  onlv  other 
propert\'  removed  from  the  vessel  was  that  ])Ut  aboard 
the  .S7.  'I'aiil. 

The  claim  for  "estimated  value  of  provisions  and 
ammunition  which  would  have  been  left  atter  a  full 
voyajji'e,  sai/  N2(tO,"  is  covered  by  the  value  of  the 
property  inventoried  by  the  otHcers  of  the  cutter  and 
the  proijert}'  [)ut  aboard  the  .S7.  J'aid. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


k 


A 


{<■     ^^ 


1.0 


I.I 


11.25 


m    lU 


lU 


140 


HiotogTBphic 
.Sciences 
Corporation 


33  WiST  MAIN  STMIT 

WnSTIR.N.Y.  M5M 

(716)  172-4503 


i 


342 


THE  CAROLENA. 


A  |H>rti()n  ot"  the  .small  items  foUowinj;"  in  the  selied- 
iih'  heloii;^  jM-operly  to  tlie  ship. 

The  item,  "Kstimated  value  of  articles  that  were 
douhtless  on  hoard  vessel,  hut  which  can  not  now  he 
specially  mentioned,  say  n-joo,"  is  with«)Ut  founda- 
tion. 

The  othcers  of  tiie  revenue  cutter  specifically  men- 
tioned the  property  taken  from  the  CaniliHa,  with  th 


exceptitin  of  the  property  taken  al)oaril  the  .S7.  /'aid. 

The  I 'iiited  States  seized  and  retained  tiie  .seal  skins. 
'I'heir  value  is  the  market  price  ruiin<i"  in  \'ictoria  at 
the  time  they  would  have  heen  jdaced  upon  that  mar- 
ket for  sale  Ity  tlu-  owners. 

The  claim  for  estimated  catch  and  for  dania;xes  in 
the  year  \HX1  can  n(vt  he  allowed.  Tiiis  ca.se  is  one 
of  total  loss,  and  no  decision  can  he  found  in  su|)port 
of  allowin;i'  future  earnin^is  in  case  of  total  loss. 

The  item  "exjienses  and  hardship  of  crew,  !•  men, 
at  >i,'»UO  each,  >*4,."»(H>,"  is  without  foundation,  in  fact; 


and  itsconsnlcnition  is  heyond  the  jurisdiction  ot  tins 
Ili^li  Commission.  The  claims  are  personal  claims, 
and  are  not  indmled  in  the  (Convention. 

The  items  "for  illegal  arrest,  detention,  imnrison- 


meiit.  and  other  liardslnp  o 


.f  .1; 


mu's 


Ooil 


vie,  master 


of  ('(iri)liitii"  and  of  ".lames  Hlake,  mate  it(  ('(iii)lriiti" 

^4,(iU0  each,  are  discussed  at  another  place   in  this 

Arjiumeiit,  to;;ether  with  all  ])ersonal  claims.     ( 'ap- 

R.,."iO().lim>  1. tain  <)"ilvie,  however,  died  hv  his  own  hand,  and  in 


Ins  cas«' 


u..  no. 


Altli 


tl 

OUJ. 


lere  was  no 


trial. 


•Ji  the  claimants  have  not  a.sked  this  lli'>h 


(Jommission  to  award  "^(^OOO,  claimed  as  the  total 
expense  of  outlittiiii;'  the  Cinolcini  in  Heriii<j;'  Sea  for 
the  voya;;'e  of  IHSd,  the  amount  has  not  heen  les- 
sened, hut,  on  the  coiifrarv,  as  shown,  is  increased 
witiioiit  any  ap|iarent  rea.smi,  from  the  time  that  tiie 
claim  was  tiled  at  N'ictoria. 

The  Tiiited  States  claim  that  Andrew  .1.  Mechtei, 
a  native-liorn  citizen  of  the  I'niti'd  States  of  America, 


THE   CAROLKNA. 


343 


!{..  1(»22,  line 
11. 

Mue  5(1. 


was  ill)  owiKM"  of  liiilf  of  the  ('(iiolnia  at  tlie  tiiiu-  of 
tlio  sciziuv,  and  tliat  this  Ilij^h  Coiimiissioii  can  awanl 
no  (laniajjc's  to  the  owniTs. 
William  .Munsir  tcstiticd: 

Q.  AVliowastlieownerof  her  when  you  coniiiiciicetl  t«  buy  k,,  87,  lim-b. 
her  I  the  CarolciKi]'. 
A.  I  believe  Donahl  I  r<|uhait. 

Patrick  Hickcy,  ciillcd  as  a  wiiiicss  on  the  part  of 
the  rnitcil  States,  was  sworn  rehitive  to  the  Citrolfiui. 

Q.  Did  you  know  tlie  schooner  Vniohniit 

A.  I  did  know  the  schooner  Caroltna. 

(»>.  Were  you  a  Joint  purchaser  with  Mr.  rnpihart? 

A.  I  invested  money  with  Captain  Uniuliart. 

Q.  In  the  puntiiaae  oCthe  shipt 

A.  In  tlie  pureliase  ofthe  sliip. 

Q.  About  wliat  year  was  that? 

A.  That  was  in  1884. 

if.  To  wiiat  extent  did  you  furnish  money  in  the  purchase 
of  the  ship? 

A.  Five  hundre<l  dollar.s. 

Q.  Ami  what  wiis  the  total  (!Ost  of  the  ship? 

A.  I  was  «iven  to  understand  thai  it  was  $1,0(M). 

(f.  You  furnished  iialf  of  the  purchase  price,  as  you  under- 
stood it? 

A.  Yes,  sir. 

t}.  You  were  at  that  time,  I  think,  an  American  citizen  ? 

A.  I  was. 

(.}.  And  yon  purchased  her  jointly  with  Mr.  Urquhart, 
who  was  a  liritish  subject? 

A.  Yes,  sir. 

'I'he  witness  then  stated  that  th(^  ship  was  repaired, 
and  tlmt  her  total  cost  after  repairs  was  about  n2,(MM);  R.  1"2;<,  line 
tliat  the  vessel  was  re<>istere«l  in  the  name  of  Captain 
Unpihart,  and  that  he  had  an  ajin'ement  from  him  Linv  lo. 
statin<r  that  he  was  a  half  owner. 

().  Now,  you  Rot  some  proceeds  when  the  vessel  was  sold,  l-'ne  50. 
did  you  not  ? 

A.  I  don't  know  that  I  did,  sir. 

Q.  Well,  was  the  sale  ncc(mnted  to  you? 

A.  The  sale  was  nnide  by  Captain  Uniuhart. 

Q.  Who  to? 

A.  I  understood  to  Mr.  .Munsic. 

<^  Now,  do  you  remember  what  Mr.  llniuhart  told  you  he 
had  received  for  the  schooner  i 


p-' 


344 


THE   CAROL.ENA. 


ii 


A.  1  ilo. 

R^lOZl,  line      .^    No;  tlie  e  V  asiUMvritiug  lit  all.    lie  reiidcml  me  81,000. 
i}.  I'or  your  liallf 

A.  As  lit'  toKl  int^  it  wa8  tor  tlic  half. 

(i».  Stated  to  you  that  he  Hold  it  for  h-'.IMM)  aud  your  half 
was  Al.(KM>* 

A.  lie  so  .stated. 

i),  Aiul  that  waH  the  sale  to  .Mr.  .Muii.sie? 
A.  So  far  as  1  can  understand — as  I  uiiderstoud  it  at  the 
time. 

.Miiiisic  tcstitlt'il: 

K.,  s7,  lini'  X.     (f.  III  |,s,s."»  did  yon  enter  into  negotiations  for  the  ]mrcha.so 
of  any  jtart  of  the  i'tiroleiiK  f 

A.  Yes;  21  sliares. 
''"""-"-'  <i>.  When  you  were  buying  the  (uie-third  and  Mathesoii 

anotiier  ontvtiiird   from  Captain    l'ri|uhart,  was  there  any 
valuation  put  on  the  vessel  at  that  timef 

A.   Yes:  aliout  •-.i.SOO. 

if.  NYeie  you  to  pay  I'ninhart  at  that  rate? 

.V.  \ Cs;  at  that  rate. 

if.  How  did  you  jiay  foi'  that  vessel  then?     Did  you  pay 
all  that  amount  of  money  in  cash  ? 

A.  No;  I  did  not. 

*}.  IH<1  you  pay  a  part  of  it  in  cash? 

A.  I  paid  i>art  easli. 

t}.  .\nd  the  rest  was  jtaid  how? 

-V.  In  two  promissory  notes. 

(}.  Have  yon  those  pronussory  notes  in  your  possession 
now  ? 

A.  Ni>;  1  have  not. 

'''li.^ri.'xo  ''"'  '•'"  "'•''^"••'  '"■"">  l>"'iii<I<l  ri-quliiirt  to  Williiini 
1,  Kxiiiii- Miiiisic,  (liiti'il  ,liiiiiiiir\  "Jl.  1S8.">,  tor  "Jl  slijircs,  or 
"*''•'■      oiic-tliiril  (d  tlu'  CiiiiihiKi,  is  in  evidence. 

TIm'  coiisiilenition  expressed  in  the  iiill  ot  sale  is 
••>>()(i7  (said  eoiisiileration  money  l»ein<^' vjdiie  ol' one- 
tliinl  interest)." 

K..H7,Iiiio;tt>.      if,  Wjis  Mathesoii  buying  on  the  same  arrangement f 
A.   Yes;  on  the  same  rate. 

Tile  hill  ot'  Side  tVoni  I  hiuald  Ininliart  to  Henry 
Matlieson.  wlio,  iit  tile  time  of  the  piirelnise  ot"  21 
sliiires  1)\  William  .Miinsie,  also  purcliased  21  shares, 
or  oiie-third  of  the  vessel,  t'roin  rn|idiart  and  Ilickey 


Till;   ("AUOLENA. 


345 


)tl  it  at  the 


possi'ssioii 


■|((;  \'.\,  No. 
ti.  <i.  H.  (1. 
No  1;  Kx- 
liiliits,  ]i.'l. 


(tlu-  Itill  of  siilc  lM'iii;i-  yiv»'ii  l»y  I'niuliiirt  licciiiisc  tlic 
Itoiit  wns  n'^iistcrfil  in  liis  imiiu'),  is  iilsn  in  cviflcn*-**. 
'riitM'oii,si(lfr!itinnfX|ircss('<|  in  tlu-  Itill  ut' siilc  is  "tlio 
snni  of  >>(i(17.'" 

Williiini  Mnnsic  |»nrrliiisf»|  the  rcniiiininy- onc-tliird 
o)'  the  CiiiiilciKi  o\\  tlu' 4tli  of  Fcltrnnrv,  I  HS.'i.     'I'liislf..  xs,    lino 
hill  <>t   sale  is  also  in  evidence,  ami  tlie  mnsideration 
tlu  n  in  expi'essed  is  "the  snni  of  >i(i(;7." 

The  a;:';ire^ate  sum,  as  stated  in  the  hills  ot'  sale, 
which  \vas|»ai<l  for  the  ('tin>liiiii\}\-  Munsieand  .Mathe- 
soii  was  >«"J.<Hll.  This  conliiins  lli<'ke\'s  statement 
that  he  received  >i|,Ot»(»  for  his  half  of  the  r(Oo/r//f/ 
wlu'ii  she  was  piu'cliased  from  him  and  ('attain  I  r(|ii- 
hart  Ity  William  Munsie.  Ihit  .Mniisie  states  that  each 
time,  in  addition  to  |iayin;i'  >^iU>l,  expicssed  in  the  iiill 
ot  sale  as  tile  consideration,  lie  j>a\<'  pioniissor\  notes 
or  additional  cash  for  the  italance  of  the  pinchase 
pfice,  and  that  the  price  paid  was  alwa\  s  at  the  late 
of  s:{,SUU  for  the  entire  ship. 

Inasnnich  as  I'atiick  Mickey  testitieil  that  the  ship 
cost  him  and  Inpdiart  aiioiit  >^J,(in(),  ami  that  slm 
was  sold  '.or  N-J.lKHt;  that  lie  ne\cr  received  Init 
><l.(l()(»  for  his  half  interest.  William  .Mnnsie,  if  this 
were  all  there  wms  to  the  transaction,  shows  himself 
to  lie  unworthy  of  helief.  The  promissor\  notes 
which  he  claims  to  liav«-  ^iveii  in  addition  to  the  con- 
sideration of  N(;(J7  ;,!•('  not  in  e\  idence.  No  check 
was  otVered  in  evidence  to  siipjHirt  his  contention  that 
any   additional    sum   was   paid,    (im/  no  nilncss  .sit/t- 

jlOltttl  /lis  tl'stini<»tl/. 

On  the  IKth  day  of  June,  ls,s."»,  .Mmisie  pmchased 
from    .Mathe.son   the  «»ne-tliird  interest  which   he  liadExiN';- «• «. 
ac(piired  from    I'npihart   and   llickey,  and  the  con-    i,'   i;xiiibl 
.sideration  expressed   in   that   hill  of  "sale  is  "  s(;(;7."    i<»>  i>  »• 
Accordin^ily,   on   the    19th  of   .Iniie,    iSH't,  William 
.Munsie  was  the  owner  of  the  ('atiilciiii.      lie  had  paid, 
accordinji'  to  the  itills  of  sale,  >;2,001  for  the  ship. 

The  re;ii.stry  of  the  Ctirolnui  disclo.ses  that  in  Feb- 
n  s 44 


I 


k!  ■; 


I?..     H!t. 

4;i. 


346  TIIK   t-AKOLENA. 


nmrv.  l)^s,"»,  wIumi  .Munsic  |Mirrlia!<o(l  from  I'rqulmrt 
mill  llicki-y  tlu-  scnnid  tliinl  of  tlu'  Carolnm,  that  lu- 
cxccutiMl  ii  iin»rt;rii^«-  tn  Ainln-w  .1.  M«-flit«'l 

Oil  till*  4tli  iliiy  of  Fi'ltniiirv,  18sr».  Muiisii>  was 
till-  owner  of  two-tliirils  of  tlu-  ('urnlniii,  and  \\v  liail 
}iaii|  tlii'ii'for.  arroi'ilin;:' to  tlic  i-onsiilcratioii  I'Xjin'sscd 
in  tilt'  ItiJls  of  sail-,  tin- sum  of  ><1. .'534.  Muiisic  stati'il 
that  111-  Imrrowi'il  n^imi  tVom  Hi'i'liti-l  at  this  tinif. 
This  was  to  avoid  thi'  ronrhisioii.  which  the  instru- 
ment itself  would  siij.'-jiest.  that  he  had  niort^a^ied  to 
Herlitel  oiie-thinl  of  the  Vessel  for^^lil!?,  exactly  what 
he  had  paid  for  it.  accordiiiM- to  the  hill  of  sale. 

liiii'  {).  Wliiit  I  want  to  m't  at  is  tliis :  Tlie  coiisiiU'ratioii  in 
that  inortj^ap*  is  st:it«>«i  at  ^iWu;  was  fUti?  tbc  amount  you 
artuail.v  hoi'iowi'il,  or  wa.s  it  inori'f 

A.   I  l»oriowt'il  altont  J!<.">IMI. 

»,>.  Tlu'ii'  si'i'nis  to  \w  till'  same  ainoiint  .stated  in  all  tlieae 
ilocnincnts.  For  some  rca.son  or  iiiiotlier  it  was  put  in  liero 
at  ijiiSliT.  hut  that  was  not  tlie  real  transai-tion  ? 

.\.  I  tiiiniv  the  amount  was  put  in  to  cover  interest.  I 
wonlii  not  lie  positive,  hut  tiiat  is  about  the  reeolleetioii 
1  have  of  it. 

(j.  Mill  you  settle  that  inoit|;a^enp  in  the  following  .liuie! 

A.  When  I  hon^iht  ^lathesim  out  iiiflune  I  borroweil  some 
more  money,  eam-eleil  that  mort};a);e.  ami  };ave  one  lor  *  I  .<HHi. 
I  horroweil  that  from  Mr.  ISerlitel. 

if.  Is  that  tliesei'onil  mort<;a^e  yon  ^ave  to  the  siiiue  man  ! 

A.  That  is  the  secoml  moit;ra;je. 

"•";■      This  niortiia;;-!'  is  in  evidence. 

The  iMort;;ajie  is  on  ?>'!  shares  of  the  \esse].  and 
the  coiisider.ition  expressed  i>  ><1. <•<»>. 

It  appears,  then,  that  on  the  'Jlst  dav  of  .lanuar\. 
18s."»,  Munsie  purchased  one-third  of  the  hoat.  and 
Feliruarv  4  purchased  another  third.  The  total  sinn 
paid  was  ^'l.y.'M.  as  ex|n-essed  in  the  liills  of  sale. 

At  the  time  of  purchasing:-  the  second  interest  in  the 
lioat.  he  executed  a  mort;;a^e  to  Andrew  .1.  Mechtel 
on  one-half  the  interest  that  he  held  in  the  lioat, 
viz.  on  one-third,  for  the  sum  of  >>(i(!7,  as  stated  in 
the  mort;;a;;e.  .Munsie  says  that  onl\  ><.'i(K»  was  actu- 
all\   Itorrowed.  and  that  the  >il«!7  was  to  cover  inter- 


i:x.  No.  - 
H.    ci. 

Kxs.,  p, 


THE   CAROLENA.  847 

est.  'I'lic  m(>rt;iii •;•(',  liowcvcr,  l»v  its  ttTiiis  ditl  not 
hciir  iiitcrcsf.  The  fiict  is  tliiit  \Villiiiiu  Mimsic  cmm- 
vt'M'fl,  liv  ihort^iiiji'c  Itill  ot  sjilc,  oiK'-liiilt  <>t  his  inter- 
est in  tlic  Ctiinhiia  to  Amlrew  .1.  Heclit*'!,  mid  niiidc 
nsi'  of  ii  inort}iii;i('  iK'cansc  Hcclitel  wjis  iin  Aincrifjin 
citizen  and  could  not  liave  liis  interest  in  the  lioat 
rejiistered  in  his  name. 

.Miinsie  ac(|nired  t'roni  ^iatiieson,  hy  l>ill  "*^"'*'' '  J!  xii^ifiit*!,' 
dated  .Inne  lit,  1SS6.  the  renriiiiinji'  one-third  interest  p.  .-■. 
in  the  ('(imliiin,  and  on  tlie  same  »hty  canceled 
the  mortj^ajic  tor  >*<i(i7  to  Andrew  .1.  iiechtel.  and 
executed  a  new  one  tor  >il.(MMl,  whicli  did  not  iiear 
inten-st.  .Munsie  was,  at  the  time  ot  the  execution  of 
this  mor1^a;.!'e,  the  registered  owner  of  the  entire  \  essel. 
and  he  couvcNcd  \V1  shares  of  the  ('(iiolriin,  or  one- 
half  of  tile  vessel,  to  IJechtel  l»y  mortjiajic  iiill  of 
sale,  for  the  reason  that  Hechtel  could  not  re;:ist<'r  his 
interest  in  his  own  name. 

These  transactions,  if  .Munsie  paid  s3,s(»(>  for  that 
hoat.  are  alisolutt-ly  unex|»laiiiaiile.  If  .Mr.  Ilickey 
received  lint  sl.ouo  fur  his  half  of  the  hoat  wlu'ii 
Mr.  Munsie  |)nrcliased  it.  Munsie  paid  hut  s-j.(iO(»  for 
the  hoat;  and  that  l>ein<;'  the  fact,  the  liills  of  sah-. 
anil  the  niort^iajics  t<»  Uechtel  indit-au' onlinary  trans- 
actions. Hut  if  Munsie  paifl,  as  he  swore,  >^;$.S(»(»  for 
the  hoat,  the  considerations  expn's.st-d  in  the  iiills  of 
sale  an;  not  explaini.l)le.  Why  the  exact  amount  of 
>«<I(i7,  which  is  the  value  of  one-third  of  the  hoat, 
slioidd  have  heen  used  in  ev«'ry  hill  of  sale,  and  in 
everv  mortjiafiv,  unless  it  was  the  amount  paid,  is  not 
explained. 

TIk'  effort  of  Munsie,  however,  was  to  avoid  the 
conclusion  that  l)v  reason  of  the  peculiar  amounts 
expressed  in  the  mortfiaffes  ^iven  to  Hechtel,  he  wouhl 
be  found  to  he  a  half  owner.  If  his  statement  that 
he  paid  >(i{,HOO  is  false,  an<l  it  is  altsolutely  proven  to 
he  false  l»y  Patrick  Ilickey,  his  testimony  that  these 
niortj'afres  were  only  mort<>a^-es,  and  were  not  <;iven 


i- 


348 


THE   CAHOI.ENA. 

to  H(>(-)itcl  ill  urtlcr  to  scriin*  his  oiio-iiiilt' o\viicrslii|), 
is  not  i'iititl«Ml  to  ••rcili'iu-f. 

TIm' mort<i;i;ii' of  FfWriiiirv,  1HS."».  <riv«'ii  lit  tlictiiiu* 
tliiit  .Miiiisif  owiu'il  two-tliinls  ot  tin*  sliip.  covori-d 
liiit  oii«>-tliinl    tlif  slii|»:   and   the  iiiort;i-ii<>°f  of  .liiii 


iss; 


I.  wlioii  .MiiiisM-  wiis  the  i-«*<rist<'nMl  owner  ot   tlic 

I'litin-  slii|».  \v!is  pljHcil  oil  3l'  sliiircs.     Wliy  Miiiisi«>, 

when  lie  owiu-il  tin-  ciitin'  sliip.  slioiilil  niortfiiiffc  oiilv 

liiilt  ot'  it,  is   iiii*-\|tliiiii<'<),  iinii  iH'iii^'  iiiu-xpliiincti  is 

conclnsivc  tliiit  Itcclitcl  owium!  first  iM  tlx-n  .'('_' slian-s. 

Exh.  !i,(i.  II.      'I'lic   Miortoiijif  of  .lime  111  liciirs  (»ii  its  tac*' con- 

i.Ex'iiibii",  viiifin^'  (•\iii»'nc»'  ot'  tin-  tact  that  it  was  not  ;>iv»'n  to 

I'  •"••  scciirt'  the  |iaviii<-nt  ot'  any  sum  ot'  mont'\   whatever. 

The  words  "together  with  interest  thereon  at  the  rate 

ot  "  are  strirkeii  out.  and  the  word.x  "without  interest" 

iii.serted:   tiie  words  "per  eeiit  |»er  annum  on  the  da\ 

ot"  strirken  out  and  "on  demand"  inserted:   the  words 

i;xliii)it  !•.      "next  and  serondly.  that  it'  tile  said   prineipal  sum  is 

heirs,  exeeiitors, 
iiiie  as  tile  same 


not  pan  I  oil  the  salt  I  <lav or 

or  adiiiinistrator>.  will,  diirinu'  siieli  t 
or  an\   part   then-nt   remain   unpaid,  pav  to  the  said 
interest  on  the  whole  or  siu'h  pari   thereof  ai- 


ma\   tor  the  time  lu-iii;:-  remain  unpaid,  at  the  rate  of 
per  eeiit  |ier  annum,  l»\  eipial   haif-\  earlv  pay 


ments  on   the 


da\'  of 


ami 


IV  o 


f 


m  e\  erv  year,    are  stricken  out.  and  the  words 

"j;iui«i.  ainmunitioii.  small  arms"  are  stricken  <Mit. 
The  power  of  sale  clause  is  avitideil  l»y  the  day  and 
year  hein;:'  left  Maiik. 

Miinsie  product  1 1  receipts  slmwiiijj'  that  the  interest 
was  paid  on  the  sc.  oiid  nioit^aji-e  tor  !^1. ()()().  If  the 
lli;:h  ( 'oiiimissioiicN  will  inspect  these  orijiiuid 
receipts  ai;ain.  the  tuiivictioii  will  lie  lirnilv  e.stal»- 
lished  that  no  interest  "\er  was  paid  on  tliis  mortjia; 


e. 


Th 


le  receipts  have  tlie  pecuhar  characteristic  ot  hem;;' 
consecutiveh  iiiimliered.  althoii;>'h  exteiidili";'  over  a 
jteriod  of  nearly  five  vears,  and  of  iieiii;:'  written  on 
the  same  forms,     tin  tln-ir  fac«' tliev  hear  evidence  of 


THK   CARKI.KNA. 


349 


lM'iii;r  iill  pn'imn'd  nt  tlic  snnif  tiiuc.     iMiiiisic  t<-stiti*'(l 
that    sitiiif    of   tlifin    Wen-    diipliciitt-s,  mihI    tliiit    Ik* 
riTcivt'd  tlu'iM  t'nmi  IJccIitrl  rcrt'iitlv.      "Wlicii  I  Wiis 
;i:jitli('riii;i-  ii|i  my  piipcrs  I  iiskcd   .>li\  Hcclitcl  to  ;;iv»' i(.,!M),iiiieii. 
me  ii  coiiv  Mt'  tlu'  n'ccipts." 

|{«'clit<'l  tt'stilifil  that  .Miiiisir  lia<l  never  saiil  iiiiv- "•'-''•  '■'"' 
tiling:'  to  liiiii  alioiit  any  <lii|ili<-ate  receipts:  tliat  lie  liail 
liail  no  iilank  receipts  lor  the  hist  lour  or  five  \ cars 
like  the  forms  used  in  the  receipts  put  in  evith-nce: 
and  tliat  the  hist  receipts  that  he  had  ji'iveii  Miinsie 
were  ;^iven  at  h-ast  four  years  a^i'o,  when  Munsietold 
liim  that  he  had  hist  one  or  two. 

-Muusie  was  cross-examined  fullv  re^ardin;;'  tliese 
transactions,  lie  stat«'d.  in  order  to  explain  how  iti(.,ii!i. 
happened  that  he  paid  ^^.^IK)  in  lasli  in  addition  to  the 
sum  expressed  in  the  hill  of  sale  at  the  time  ol  the 
purchase  of  an  interest  from  I'npihart  and  llickev. 
that  lu-  sometimes  kept  $I<)JKKI  hi  ntsh  in  a  lilllr  sn/iu..  i-'o,  lin< 
in  his  otlice.  ■'■ 

A  re-readin;^'  of  the  cross-examination  of  .Muiisic 
ndative  to  this  transaction  will  convince  the  Ilinh  i.'..  un. 
( "ommissioiiers  that  the  impression  created  at  the 
hearin;;'  at  \  ictoria  that  these  mort;;a;L!'es  were  merelv 
executed  tor  the  purpose  of  seciirinii'  to  IJechtel  his 
interest  in  the  vessel  was  the  fact. 

.Miinsie  staletl  that  he  did  not  know  that  the  ('(iin-u.,  i;i.-i,  lint- 
liiKi  went  out  on  a  sealinji'  trip  on  the  coji'^t  in  the  ''' 
sprin;:-  of  Issd;  that  she  mi^lit  have  l»roii<iht  np  a 
tew  seals,  hut  that  her  |n'incipal  oliject  was  to  no 
down  to  secure  hunters.  The  impression  that  .Miinsie 
eiideiivored  to  make  is  that  all  the  supplies  put 
alxiard  the  ('arolnid  in  Kehruary  were  for  the  voyjijie 
to  Herinji'  Sea,  and  for  that  reason  he  does  not  state 
that  the  Cinolniii  had  heeii  sealiuii'  <>n  the  coast  in 
the  s|»rin<i'  ami  used  a  part  of  the  supplies. 

The  witness.  Serault,  testitied:  '•,•.,'"-•  """ 

if.  On  wliicli  tripoC  i\\*i  VuroliHn  did  lie  come  to  Victoria? 


I 


350 


THK   CAKOI-KNA. 


A.  I  tliiiik  it  wiiH  whvii  they  <|uit  NCHlintf  on  tlio  couMt,  uh 
iM'iir  as  I  rerollcft.  ' 

K.,  tti.">,  line  (^,  Tlu'.v  wfiil  up  there  lirst  iiixl  before  the  eitnoeH  were 
put  on  Itoiu'tl,  itiid  went  seiilin;:  in  tiiu  Mpring,  in  Feliruiiry, 
on  the  i-iiiiHtf 

A.   Yes. 

If.  How  many  Indiana  went  on  that  trip,  the  llrnt  trip, 
wlien  tliey  went  sealing;  on  tiie  eouHt' 

A.  'i'liat  I  tlon't  iinow.  I  tliinic  it  was  si\  or  «Mgiit  lanoeM 
tlie  Ctiniliiiti  carrieil. 

K.,^ur.,  lino  Ainlrcw  .1.  Mcclitcl  wiis  rnlU-A  iis  n  witness  on  tin- 
|iiirt  ')!  tlic  rliiiiiiiiiits  iiinl  tcstilicii  that  lit-  Innl  no  in- 
fcCfst  ill  tlic  Citiiih ml  ill   ISSd  cxcclit  as  liiort;^ji;;c»'. 

It  was  i|cV('lo|ic(l  on  dircrt  cxaiMiiiatioii  tliat  lu-  liad 
si^iiictl  as  atloriK'V  in  tart  llic  ilaini  of  .lames  ( )yii\ic, 
nia>tfr  ot   tlic  ('nrult  na,  lor  iiaiiia;;t's  from  the  I'liitcil 


K..   117.    lino 
no. 


htatt 


Tl 


f  uitiifss  statfil  on  tliicct  (•xaininatioii; 


!(..  117,  Inn-     {),  Anil  \(in  were  on  board  of  her  Itefore  slie  sailed  : 
"•"'  A.   Yes.  sir. 

Itt-ciit*-!  sail!  on  rross-*-\ainiiiatioii: 

K.,  i.'iii,  line     {j.  When  yon  went  on  the  ship,  ilid  you  p)  below  J 


*'•  A.  N..;  I  did  not. 

if.   Didn't  }i;o  iielow  .' 
A.  I  believe  I  did  ^'o  in  th«-  cabin. 

</.  What  did  you  j;o  there  for.'    Tosay  H;ood-bve  to('ai»tuin 
(»t;il\ie; 
A.   Yes. 

iy  .Inst  went  on  to  visit  the  eaptiiin? 
.v.   Yes;  to  see  the  captain:  that  is  all. 

.lolin  ("otsfoni,  tail'  of  the  linntcrs  cd'  tlic  CiimhiKi, 
was  called  In  tlic  rnit<'d  States  as  a  witness  rej^ard- 
in;-'  flic  vo\aj:'c  of  tlie  Ciiin/riiii,  and  testiJied: 

B.,375,liue3.     *i-  Whom  did  yon  tell  this  to* 
A.  Mr.  Iteehtel. 

ij.  Was  .Mr.  Iteehtel  at  that  trndiii};  post  that  .spring! 
A.  He  left  here  imi  the  .schooner  with  U8  and  went  down. 
Q.  On  what  sehoonerT 
A.  The  (Jiiroleiifi. 

Q.  Mr.  John  A.  lieiditel,  or  .Vndrew  liecbtel,  otherwise 
called  f 

A.  Andrew  liechtel. 

Q.  He  started  on  the  sealing  voyagef 


'it 


THK   (  AK«»I-KNA.  361 

A.  lie  It'll  iM're  on  the  CnroleiDi  anil  went  t«»  Olii.voi|uot 
with  nH. 

Q.  Yon  knew  him  pretty  well,  iliti  yon? 

A.  Ves,Hir;  I  knew  him  pretly  well.  I  Inul  heon  ne<|niiiiite<l 
with  him  a  year  or  two  lielori;  tliat. 

</.  Was  I aiTJed  oti'  on  the  Vmulfnn   by  mistake  or 

iiK'iinHt  liiH  will? 

A.  I  think  not. 

if.  Ileiliti  not  Hay  KO'xi  hye  to  (Japtain  O^'ilvie  Itelore  he 
eunie*!  him  away,  did  he  ?  Von  did  not  hear  anything  aitout 
liiH  coming;  on  l)our«l  to  Hay  ;;immI  live  *. 

A.  No. 

ii.  Well,  who  engaged  in  the  purchase  of  eanoes  at 
Clayo(]nol  *. 

A.  Mr.  Keihtel  did  the  most  of  it. 

Ciilslnrd  iilsti  tcstili*-)!   tliiit  Mniish  wwA  Hiclitil  i hi-*' .'/■^''■•-  '''"' 
jthii/ril  liiiii  to  yo  iis  il  liiiiitfr  oii    tlic  Xuvji'ic  id'   ISSd.      '   '    "''' 

.liimcs  .Miinjicr,  il  witness  riillftl  on  licliiill' ul  (irciit 
l^-itiiin,  iiMil  iiiif  ut'  tilt-  liiintcrs  on  Jiuiiril  tin-  ('nruli mi, 
tfstit'H-il: 

if.  It  has  liceii  stilted  that  Mr.  Iteclitel  Wiis  on  boiird  at"-  "•'••   ''"•• 
the  time  she  went  up— is  tliat  coiTeit  .'  '"• 

A.   ^■es;  he  w»'iit  up  with  lis. 

hiiviil  K'lisscll.  il  witness  ciilled  on  lieliiilt' ut' ( iiciit 
Mritiiiii,  tcstitieil: 

<^  On  that  trip  lip  on  the  r((/(»/(H(Mljd  you  slop  uny when-.' H..  .isit.  iiiu- 
A.   We  stoppe«l  iit  riiiy(i(|iiot.  '  •'■"'• 

(f.  WiiM.loliii  .\.  licclitel  on  board  when  you  lelt  litre  iind 
stopped  there? 
A.   Ves.  Hir. 

.Mirliticl  Si-rillllt,  il  witness  ciilleil  uii  lieliiilt'  nt'  (ileiit 
Mritiiiii,  testiliefl: 

<»).  Did  yon  see  Mr.  Itechtel  on  the  oeeiisioii  of  the  seeoiid  l{.,  till,  liiir 
visit  of  the  Ciiniliini  to  Oiiiyoipntt  ?  l!' 

A.  I  saw  him  when  she  wiis  on  her  voyiige  to  Itering  Sea. 

Tlu'se  tlifei'  witnesses  cniielilsivelv  estiililisli  tliiit 
.\inlrew  .1.  Ueclitel  swore  liilselx  wjieii  lie  testilieil 
tliiit  he  went  to  tile  Ciiniliini  wlieii  she  left  lor  Merino- 
Seii  to  siiy  ;ioo(l-l»\  to  the  ciiptiiin.  'I'he  witness 
iindoiiliteilly  tlioii;:ht  it'  he  siiiil  he  wiis  iilioiird  the 
Curit/riiii   UII    the    voviiiif    the    coiiehisioii    woiiM    lie 


Hi 


t 


If 


352 


IHK    <  AUOI.KNA. 


(Iriiwii  tliiit  lie  wiis  ii  piirt  owner  <tt'  flic  ('finilnm,  ami 
In-  tlitTflort  ilfsii'cd  it  to  ii|>|ifiii'  tlwit  lie  Uiis  in  nn 
Wii\  ruinicclfd  with  tin-  \i»\  iiyt,'. 


Itri'liK-l  tt'still 


K.,  li.'>,  liiK'     <^).  Mow  lull};  liiivi'  yoii  li(>i>ii  *'iiKii;;eil  in  tli«>  H(>alini; 'xisi- 
14.  iicss  — aliitiit  liow  KiiiK? 

A.  I  taii't  say  t'xaitly  as  to  a  inoutli;  uvrr  tlireu  yt-aiH. 

If.  AlMMit  tliri'c  Nt-ars,  ynii  mean  ? 

A.   Aliouf  tln«'«' ytsMN— l(»ii;;»'r. 
[{.,  ll.'>.  Iliii'     *}.  I'l'iiir  to  IHSt)  Iniil  yon  anytliin^  to  do  with  tliu  H(>alin;i 
-5'  ImisIiic.vh.' 

A.    Nr.  siv. 

(,>.  Ilatl  yon  anytliin;;  to  do  witii  sliippin^? 

A,  No.  sir. 

<^.  hid  yon  know  anytiiin}r  ahont  sliips  np  to  that  tinitt? 

A.  No.  sir. 

Q.  Had  yon  owned  any  ship  Itelorv  tliiMi .' 

A.  No.  sir. 

if.  Had  y<Mi  any  sinntt  or  interest  in  any  sliipstd'any  i^iiid 
np  to  that  time.' 

A.  Not  any. 

if.  And,  in  fat't,  InnI  yon  in  issii  niiy  interest  in  any  ship! 


A.  Not 


IMIV. 


<).  Or  in  ISST 
A.  N 


o.  sn'. 


if.  Or  in  ls,ss,  us  a  nuHter  of  fact 
A.  N 


o.  sn'. 


Q.  (»r  in  issit! 
A.  N 


o,  sn-. 


Willi 


lani  .MnnsM'  was  a  witness  calleil  in  ins  nwn 
lielialf'in  tile  ease  oi'  the  I'litlijiinltf,  elaini  No.  14. 
The  rejiister  of  the  I'ttthjiiitlif,  which  Mr.  .Miinsie  knew 
was  in  the  possession  of  the  I'nited  States,  (li.selose<l 
these  tarts:  That  William  iAfnnsie  had  the  entire  title 
in  his  name  to  the  I'dlhliiidn-  np  to  the  ISfh  day  ot' 
Kxhibit     !•»  |>eeeiiil»er.  1S8."»:   that  upon   that  dav  he  eonveved 


{(J.  U.),(  !. 


y 


14'kxs.,p!  f^ixtccn  shares  to    Frederick  ('ariie,  jr.,  his  partner  in 


274. 


hnsiiiess, 


and  on  the  same  <lav  conveyed  to  William 


Ml 


•k( 


iinsie  and  rrcdcrickl  arne,  jr., joint  owiu'r; 


thirt> 


two  shares,  and  on  the  saiiu'  day  William  .Miinsie  and 
Frederick  <  "arne,  jr.,  niortfiaocd  sixteen  shares  to 
Aii(h'ew  .F.  liechtel,  tor  81,107,  and  sixteen  shares  to 


THE   CAKOLENA. 


358 


M.    N.    Ilcrlitil,    Aiidrfw    .1.    Hcclitcl's    Itrotlicr,   for 
!^l.I(»7. 

.Mimsic  hiiil  tcstilifd  in  rlif  Ciiioliiiii  niwc  tlint   lie  if.,  uu,  lii 
|iuiTliiis»'(|  till'  I'iithliiiilir  iit  lliilit'iix  in  tlic yciir  ls,s:»,    ^'' 
lit  11  CMst  ot'jilMint  '^4, ."•(»»,  "or  wirliin  ii  tew'  <iolliirs  of" 
it,  one  wiiy  or  tlu' otlicr."     Acroidinyly.  )iltlioii;;|i  tlic 
iiHiiliivits  tiled  iit  I'mis  in  fonncction   with   the  riiiiin 
of  tlu-   I'lilhliiiilir  ili<l   not   disclose   tlifit    Andrew   ,1. 
Iteelitel  liiid  iiny  interest  wliiitever  in  tlie    I'ntliliiiilir 
or  in  its  voyii;^*'.  .Mm  -!.  ileeided  tliiit  two  sucli  pecnl- 
iiir  triMisnctions  ii|>i>ein  Ihl- nn  tlie  rej;ister  woidd,  |»er- 
Imps,  not  l»e  vieweil  in  the  liulit  thilt    he    woidd    iiilVf 
them,  :nid  idthoui,!''  not  testit'yin;;'  on  direct  cxiiniiiiii- 
tion  in  the  I'lilliJ'    '  /■  chinn  tinn    liechel   li;id  iin\-  in- 
terest in  the  /''^///////(A/,  he  siiid,  on  cross-exmniiiiition,  i;    ,.,.,  ,j, 
tlijit  .Mr.  I5ee]it(d,  idthnii-h  he  luid  no  interest   in   the    -'i. 
I'tiflijii/ili  f,  wiis  inten  .>ted  in  the  voyji^c  nml   veiitin'e 
in    the    yeiir    iSSil.      lie     idso    stilted    tliMt     Herlifel 
ii<M|iiired  ill!  interest  in  tlie  veiitiin-  of  the  I'lilliliiuli r 
in    the   yeiir   ll^Hli.      'I'lii.s   /'\  n    posi/irr   iltninl  of  tlir 
sliiliiin  nf  nf  A  Hill  I  ir  ,1.   liirhtrl,  Hint  lir   inis  iml   inli  i- 
islrd   ill    till    siii/iiii/   liii.sinr.ss    itiilil    iilmiit    finer   i/iiir.s 
jiliiil-  Id  llir   lillli'   lllllt   hr  inis   Irsfi/'i/ini/,   llllicll    inmlil  III- 

ts;rj  III-  ls!>:i. 

Miinsie  hiid  t«'stilied,  nion'oxcr,  on  direct  exiiminii- 
tion,  thilt  the  totiii  cost  of  the  I'litli/imlrr  wiis  n  l,lj,s. 
The  snin  of  the  two  niort<i!ij:'es  iippeiirin;:'  on  the 
re;iisters,  iis  ;;iven  to  the  llechtels,  would  he  n-_»,214, 
or  one-half  the  vtilile  of  the  I'lillifiinlir.  These  pecnl- 
iiir  proportions  existed  in  the  ciise  of  the  ('(iiolnin, 
iiithou<,''h  Mr.  .Munsie  there  eiideiivored  to  estiihlisli 
thilt  he  liiid  piiid  inonev  in  iiddition  to  the  consideni- 
tion  expressed  in  the  hills  of  side,  in  order  to  nvoid 
the  necessjiry  eonclusion  thiit  liecditel  Wiis  iin  eqinil 
owner.  Hut  I'iitrick  ilickev,  who  swore  thiit  hut 
><2,(HK)  wjis  pjiid  tortile  vessel  when  iMiiiisie  piindiiised 
her,<'ontriidicted  him  iind  jiroved  conclusively  thiit  the 
B  8 4'> 


354 


THE   CAROLENA. 


Exli 


M, 
S.    CI. 
Kxbs.  •! 
Kxh.  15, 
S.    CI. 
Kxlig. 
277. 


iiiortjiiijrp  to  li»'('litt'l  on  tlic  ('uiulviui  was  one-liiilf  its 
valiu'. 

Tilt'  (U'tails  ot'  tlu'  ('ross-i'xaiiiiiiation  of  Muiisie, 
relative  to  tlic  transaction  with  Hcclit*'!  conccrninii' 
the  I'dthjiiiihf,  and  whicli  are  t'onnd  in  iiis  cross- 
examination,  lU'conl.  lo(i;$  to  ir»(!Il,  estal>lisli  the  con- 
viction that  Hechtcl  was  a  half  owner  ot'the  /'(ifli/iiidn; 
as  he  was  a  half  owner  of  the  ('(inilma. 

In  the  Ariiiniient  on  l»ehalf  of  <ireat  Hritain  it  is 
adniitteil  that  Hechtcl  was  e<|nally  interested  in  the 
ventnre  of  the  I'dtlijiinlir  in  1S81I.  The  niortjiajit's 
which  are  in  evidence,  execnted  l»y  .Mnnsie  it  ("arne 
tt»  IJeclitel,  have  the  same  pecnliar  characteristics  as 
the  mortji'a^'es  ex«'cnte<l  on  the  ('timliiitt.  Tlici/  iln 
iKil  liiar  iiilircsl,  tlir  iitlcrr.st  ihiu-'irfi  lifiiitf  riiisrd. 

Andn-w  ,1.  Hechtcl  testilied  that  he  was  not  iiiter- 
I'sted  in  any  shi|i  in  the  sealin;;-  laisiiiess  nntil  aliout 
three  vears  lu'fore  tiie  time  he  was  testifyin^i'.  i'liis 
was  lu'fore  Mnnsie  had  ilecided,  in  order  to  ;ittem|it 
to  sa\('  (he  CiiiiilriKi  claim,  to  acknowlediic  that 
lU'i'htel  was  interested  in  the  ventnre  of  the  I'atli- 
liiiilii\\\  the  \'ear  ISSlt.  ami  to  '/\\v  the  hisior\df 
their  dealin-is  in  the  \ cars  ISSd,  1,S87,  ISSH,  and 
ISSK. 

rile  oiilv  coiichisioii  which  can  lie  drawn  from 
the  testimony  and  i'rom  the  exiiiltits  fomid  in  the 
Record  in  connection  with  these  two  claims  is  that 
Andrew  .1.  Heclitel  was  a  half  owner  of  the  ('(iru/i  iki 
at  the  time  of  her  seizure  and  a  half  owner  of  the 
I'litli/iiitltr  at  the  time  of  her  seizure. 

The  im|aession  created  l»y  these  witiies.ses  at  \  ic- 
toria  was  that  these  mortuaj^'es,  as  said  liy  oiieof  the 
lli;;h  Commissioners,  were  "whitewash  inort>ia«;es"' 
and  that  im|iression  was  iicxcr  removed  and  a  readinji' 
of  the  K'ecord  docs  not  now  remove  it. 

In  the  schedule  a|i|)ended  to  the  claim  of  the 
Ciiidlriiii  in  the  Ihitisii  Ar;^iniieiit  the  claim  is  made 
"Net    value    of    apiiroximate    catch    i'or    1SS7     was 


TIIK    CAUOLENA. 


866 


8"», ()(>(>."  No  cN  idciH'c  is  cited  to  support  tli»s  cliiiiii, 
jnid  iiiiisiiHU'li  iis  ii  decree  ot"  coiideinimtioii  jiiid  t'or- 
feitiire  was  entered  and  tlie  vessel  never  returned  to 
lier  owners,  and  tlieretorea  total  loss,  no  l»asis  lor  this 
claim  exists. 

The  claim  was  made  at  the  hearin;^'  that  l>v  rea.son 
ot"  the  letter  of  Xovemher  1.  ISSS,  irom  the  I'nited  "■•  105. 
States  marshal  tor  the  IMstrict  of  Alaska  to  ".Munsie  iV: 
Co.,"  iuformiiij:'  them  an  order  iiad  heeii  entered  releas- 
inji'  the  ('(iihIiihi  to  her  owner,  the  case  hecame  one 
of  detention  and  partial  loss,  rather  than  total  loss. 

The  reply  of  Sir  L.  S.  Sackville-West  1;.  .Mr.  l»avard,  '>'••'"'• 
the  I'nited  States  Secretar\  of  State,  acknowlediiini;" 
th<'  receipt  of  a  note  dated  the  8d  of  Fel)ruar\.  1SS7, 
contained  the  information  that  oi'ders  had  Iteen  issued 
direcliuL;'  the  discontimiance  of  all  proceed  in  i;s  and 
the  discliaru'e  of  the  \cssels  seized  in  ISSli  is  in  the 
IJecord.      This  letter  Itears  date  i'"eliruar\    I,  1SS7. 

(  >n  the  iMJth  day  of  July,  ISST,  the  deput\  min- 
ister of  lislieries  tor  the  homiuioii  of  Canada  wrote 
as  lollows  to  Midisie  ((   ('it.: 

Dkau  Siks:  I  liiivc  to  a('kiio\vlt'(l<;o  tlio  receipt  of  your  |{.,  ;i(i7. 
letter  of  the  I'.ltli  instant  iuldiessed  totlie  ininister  of  niiuine 
ami  lislieries.  in  wliieli  yon  state  -we  have  nut  received  a 
siiif-le  wont  from  the  I'nited  States  Uoverinnent  alxMit  the 
release  of  the  vessels,"' reten'iii|>',  of  conr.se,  to  those  seized 
lust  season. 

(Ml  the  L'd  nf  Ai>ril  last  I  eoinmnnicated   to  yon  the  deci 
sion  of  the   President   of  the   I  ailed.    States,  in   .so   far  as 
releasinjj  the  ves.sels,  etc..  which  letter  yon  aeknowledfjed. 

I[a\(^  yon  made  any  apidication  for  the  sn? remler  of  the 
vessels,  or  have  yon   reascai  to  suppose  the  liiited  Stales     • 
(io\ei'ninent  would  coinmnnicale  the  action  to  yon  Ity  other 
means  than  the  ordinary  otiicial  channel? 

'i'hisdopartnient  lost  no  time  in  coniinnnieatin^  the  deci- 
sion in  qiu'stion  to  you,  itilli  tliv  r.iiiirliitiDii  that  ijini  iroiihl  <il 
once  liihr  steps  to  rtijuin  pussission  of  tlif  rt'ssils. 
I  am,  etc., 

.loiiN  Tii/roN. 
Pcpiitji  Minister  of  Fisheries. 


.  656  THE   CAKOLENA. 

This  letter  discloses  tluit  sis  early  as  AjH'il  '2,  1SS7, 
Mr.  Muiisie  was  advised  that  he  eould  »»btaiii  his  ves- 
sel by  g"oin<^  tn  I'lialaska.  lie  took  iu»  steps  t(»\vard 
retakiii<>-  possessiiui  »»tthe  vessel,  and  treated  her  as  a 
total  loss.  If,  at  this  time,  Munsie  had  taken  steps 
to  reelaini  his  property  there  iiii<;ht  he  some  basis 
f(»r  a  elaim  of  detention;  but  solelv  because  at  a  much 
later  time,  and  after  the  vessels  had  l)ecome  worth- 
less, the  United  States  formally  offered  t(»  return  the 
property  for  diplomatic  reasons,  the  fact  that  the  owner 
liimself  had  abandoned  the  vessel  and  treated  her  as 
a  total  l(»ss  is  not  removed. 

Tlic  fc.ssci  «•f^s•  ti'Hilircil  fti  fill'  owner  hi  Jjtril,  JW/\ 
ami  flic  ti'iiilir  njiif^vd.  The  subsecpient  tender  on  the 
part  of  the  I'nited  States  has  no  Ijearing-  upon  the  na- 
ture of  the  claim,  because  j)rior  thereto  the  vessel  had 
been  considered  and  treated  as  a  total  loss  by  her 
owners. 


the  thornton. 
Claim  No.  2. 

'I'lit'  Tlionitdii  was  a  .scliooiuT  of  22.30  iv<;istirt'(l 
tons,  witli  auxiliary  stoaiii  power  of  ssinall  capacity. 
Ill  I'Vliriiary,  1886,  slic  was  cliartcrcfl  hy  Jost'|')li 
Hoscowit/,  and  cni|)loyt'(l  in  scaliii;^'  under  the  direc- 
tion of  .lames  1).  Warren,  tliev  lieiiiii'  e([Uallv  inter- 
ested in  the  profits  of  her  voxaye. 

On  May  .'Jl  the  vessel  left  the  west  coast  of  \'an- 
couver  Island  for  Herinji'  Sea,  which  she  entered 
July  2  in  tow  of  the  DdI^iIiiii.  She  coinnienced  seal- 
ing- on  the  r»tli  and  continued  operations  until  she  was 
seized  liy  the  Tiiited  States  revenue  steamer  Conrlit, 
at  (!  o'clock  p.  111.,  August  1.  at  which  time  she  had 
on  l)oard  -U).'5  seal  skins.  ( )n  Auiiust  2  she  was  towt'cl 
to  I'nalaska,  where  she  was  sul)se(|uentlv  ilisnian- 
tled  and  heai-hed.  ( )ii  Au;:ust  2S  she  was  liheled 
by  the  Tnited  States  attoriiev  in  the  district  court  of 
Alaska,  and  a  demurrer  and  answer  were  iiled  Sep- 
temlier  20  on  hehalf  of  dames  I ).  Warren  as  owner. 
( )n  October  4  a  decree  of  condemnation,  forfeiture, 
and  .sale  of  the  vessel,  her  tackle,  apparel,  and  carji'o 
was  entered.  A  motit>ii  was  made  on  the  .same  day 
by  the  jiroctors  for  the  claimant  asking-  to  have  the 
decree  set  aside,  which  lieinji'  overruled,  a  notice  of 
appeal  was  Hied  on  behalf  of  the  claimant. 

The  appeal  was  never  perfected  and  no  proceed- 
inji's  were  taken  to  arrest  the  sale  of  the  propertx'. 

In  the  autumn  of  1SH(!,  and  presiimablv  a  short 
time  after  Warren  received  notice  of  the  decree  of 
forfeiture,  he  purchasetl  the  schooner  Mtiiji   'I'di/lar  to 


H.,  OUT,   line 

10;      1613, 

line  10. 
K.,  10X7,  lino 

12. 
K'.,  um,  line 

lit. 


App.  11. 11.92, 
hue  32. 

A  lip.  II.  p.  9."), 

line.  32. 
K.,  U)s.-.,  lino 

.-.4. 

App.  H,  p.  OS 
linr  13. 

App.  li.  ji.  lis 
line  25. 


App.  U.  ils: 
line  a'J. 

App.  H.  p.f<9 
line  12. 

App.  1!,  p.  !M), 
line  1. 

App.  II,  p.  90, 
line  41. 


358 


THK    THOUNTON. 


R.,  1150, 
61'. 


line 


R..  1158, 
14. 

R.,  11«1. 
2G. 


i;.  1177, 

Hi. 


IIIK 


A ))  1. . 
86-H7. 

.\|..    1!. 
85,  line  1." 


Ur.  Ar.'.,  1(12. 


K.,  1O80, 

(jO. 
K„  1091, 

3. 


lino 
lino 


tiikc  tlu-  i»l!it'i'  «»t'  tilt'  vessel  seiyA'il.  Mis  testimony 
ii|Hm  tlu'  sul»ject  is: 

*}.  After  tlie  seizure  of  the  Thontton  did  you  provide  a 
vessel  to  take  her  phiee  in  the  Meet? 

A.  Ves. 

<»>.  \\'liat  was  the  one  J 

.\.  Tlie  M<ii-)i  '/'«///()»•. 

(i>.  Wlieu  did  vou  buy  the  Miiiy  Tai/lor.' 

A.  In  tiie  fallonssii. 

«»>.  What  did  vou  use  tlie  Mun/  Tm/lor  for  after  vou  bought 
her  ? 

A.  Sealiiif;. 

(,>.  Where' 

.V.  On  tiie  coast  anil  in  r.erinj;  Sea. 

<}.  l''or  what  sealinjr  sea.son  ? 

A.  I,SS7. 

Tile  |ilirclias('  (d'  tills  \('sst'l  for  tlir  sale  nhjcct  itf 
rrjildriiiil  /lie    Tlinnitiili,   lltT  elll|ilo\lll»'llt   tor   tlu-  .Silllll' 

|»iiriH)scs  ,is  till'  seized  schooner,  the  iiliinHloinnoiit  of 
tlie  a|i|M-a]  to  tlie  I'liiteil  States  Supreiiie  Court,  ami 
tile  fiitr\  of  Kehniarx'  'JS.  Is.sj,  in  Warren's  joi'nial 
rliat  llie  \ cssels  were  to  he  sold,  estahllsh  concliisnch- 
tliat  the  >eliooner  liecame  a  total  loss  to  her  o\\  nei' 
and  was  so  treateil  li\   him. 

At  the  time  that  the  vessel  was  anelnu'ecl  in  the 
harltor  ni'  L'nalaska.  an  invcntorx'  was  made  hy  an 
ollicer  ot  the  Cuririii,  which  was  otl'ered  in  evidence 
l>y  <ireat  Uritain.  and  is  a  jiart  of  K\liii»it  No.  4."i 
((i.  1>.).  ciaim  No.  l'.  There  also  a|)|tears  in  thes.ame 
Kxiiiliit  .1  list  of  the  arm>  and  ammunition  fonnd  on 
hoard  the  schooner  at  the  time  of  seizure.  The  arti- 
tdes  coiitaineil  in  the  invcntorv'  ;ind  in  the  list  were 
delivered  to  tin-  I'nittMl  Stales  marshal  at  Sitka,  and 
were  tiie  only  property  seized. 

In  the  scliednle  wliicji  a]ipears  in  the  opposinji'  Arj^n- 
ment  settin;^'  forth  in  detail  the  damages  i  .  .me(l  for 
the  Tliiiiiitoii,  there  is  inelndeil  an  item  for  "Premium 
(d"  insurance  paid,  ^4U»."  b'our  jioliciesid' insuiaiiee 
upon  the  schooner  'l'li(initiiin\u>\  her  carji'o  were  otiered 
in  evidence  l»y  the  claimant.     Oi'  tlie.se,  one  upon 


THE   THORNTON. 


359 


the  carffo  cxitiivd  »tii  ,Iulv  3,  ISHC.  Two  otliiTs.  one  "••  lO^."*.  ""« 
ii|)tiiitlu-  liiill  ami  aiiotluT  ui»oii  tlu'  (•ar«;<i, arc  iiidorsfd. 
"('aiic«'lt'(l  this  iHthcv  oil  ami  tVmu  the  "Jiid  Aiijiust, 
risk  iiaviiiji"  ceased  tlimiijih  vessel  having'  been  seized 
1)V  the  I'liitcd  States  ( Joveniiiieiit  ami  retuniccl  three 
l)eri(»ds  of  Us.  Idd.  [and  13s.  4d.]  a  period."  The  h..  ici*.  line 
one  remaining'  |»(»licv  was  tor  ITiOt),  at  the  rate  of  8 
•iuiiicas  |»er  cent. 

The  risk  was  declared  to  commence  on  the  lltli 
March.  ISHfJ,  and  to  end  on  the  3rd  .March.  ISS?.  l)oth 
da\s  imdnsive.  The  owner  of  the  \cssel  had  there- 
fore received  the  heneiit  of  this  ))oli<'y  np  to  the  time 
of  seizure,  and  at  such  time,  the  lial)ility  of  the  under- 
writers haviu"'  i-eiised  throuiih  the  act  of  seizure,  it 
was  the  <lutv  of  the  owner  to  have  secured  the  reltate 
for  the  canceletl  |iolic\-,  which  he  undoidttedly  iliil. 
In  relation  to  the  |»olicies  wliich  w«'re  canceled 
tlirou<>h  the  ri.sk  liaviuL;-  ceased  on  the  2nd  AuL;ust. 
and  the  itolic\-  which  ex|iired  on  the  ;?rd  duly,  tiie 
owner  had  received  tile  full  henefit  of  his  expenditure. 
It  is  therefore  claimed  l>y  the  I'nited  States  that  no 
award  should  he  made  the  claimant   under  this  item. 

The  claim  for  "value  of  articles  in  inventory  not 
jiroperK'  lieloiijiinu-  to  the  >lii|t.  on  lioanl  at  the  time 
of  seizure."  is  Itased  ncconlini;'  to  the  marginal  refer- 
ence in  the  Uritisli  .Vriiument.  upon  a  schedule  I'lv- "vj^""''  '""' 
pared  t'rom  inveiitorit's  appearini;'  in  the  lo^;-  of  the 
schooner.  .\s  the  value  set  opjiosite  these  articles  is 
•  "iven  l)v  .lames  It.  Warren,  who  was  not  shown  to 
have  had  knowleclcie  of  their  condition  at  the  tune  ot 
seizure,  it  is  to  he  |»resunu'd  that  they  are  Itased  upon 


what  such  artu-les  won 


Idl 


ia\c  cost  wlieu  new, 


lie.-<e 


valuati<tns  can  oulv  he  applied  liy  allowini;- a  rea^on- 
ahle  deducti(»n  for  the  condition  of  the  articles  as 
shown  l)v  the  inventory  taken  hy  Lieutenant  Cant- 
wt'll.  The  total  of  the  valuations  jiiven  for  these 
articles  l)y  Captain  Warren  is  Sy;{().44. 


!{.,  !tG7.    hue 
10. 


*■ 


"4^ 


Tl 


le  same  .statement  inav  he  made  m 


reiianl  to  the 


Pit. 


360 


THE    THOKNTON. 


valuation  <»t'  the  anus  s«'iz»'(l  as  ^fivcn  in  tlir  Ar<>-n- 
iiient  on  Itclialf  ot"  (Ircat  Mritain,  it  appcariiifi'  l>v  an 
examination  ot  tlu' niar;jinal  n'tcrcnccs  to  the  !Ii'Cov<l 
tliat  tilt'  niiii'iiiiil  rii.sf  is  the  Wasis  ot"  the  claim,  without 
any  (h'thiction  iiavin<i'  Ik-cu  ma<U'  tor  the  (U'prci'iation 
of  sucli  tircarms.  whirh  is  cxi-i'ssivc  in  H»'nn<i'  Sea 
liccausc  ot'  the  |»rt'\ ah-ncc  ot'  t'o<rs  and  rains  in  that 
rciiion. 

The  Kcronl  dischtsfs,  in  rchition  to  the  item  cnti- 
th'il  '•S|(>|)  chest,  foii)  ^I2h"  the  t'ono\vinj>'  in  the 
examination  ot'  .1.  I).  Warren: 

H.,  oil,  liiif     <v>.  Tlierc  is  a  claim  in  tliat  sdiedule,  innrked  No,  17,  for 
59.  ideiitilicatioii,  loidry  f;oiiils.  docs  that  refer  to  the  slop  chest? 

A,  That  wouhl  be  the  slop  chest. 
i).  About  liow  much  was  on  the  Thortitoiit 
A.  I  supiiose  about  ><L'.">(>— i-L'tlOor  Sl'.'iO. 
Q.  Tliis  is  J?!!*:  wouhl  there  lie  an  error  in  that  statement? 
A.    77/c  mtit  111(11/  liiirr  (jot  tlwir  supplivs  beforv  tliri/  Jcfl  hi 
tliiit  ranc. 
().  At  any  rate  you  remember  there  was  a  .sh)p  chest? 
A.  Ves;  they  had  a  slop  chest  on  board. 
i}.  An<l  you  usually  carry  *L'.")0  worth  of  stutl'f 
A.  I  sually  carry  about  that. 

The  liiitol  States  chiim  that  tliere  is  no  evidence 
as  to  this  item. 

In  rciiurd  to  "estimated  vahie  ot"  artieh-s  which 
were  doultth-ss  on  lioard,  wliicli  can  not  now  he 
specilicallv  mentionech"  and  '*l»eddin;^-,"  tlieve  is  no 
eviih-nce  het'ore  the  Conmiissioners. 

'•  Kxitenses  and  hardships  of  crew,  thirteen  men, 
at  ^^.'lOd  each,"  wliicli  appears  as  one  i>\  tiie  items  in 
the  schedah-  referred  to.  are  personal  chiims,  wliicli. 
not  haviiiii'  lieen  presented  to  the  Trilinnal  of  Arhi- 
tratioii  at  I'aris.  and  not  liavinj:'  l)een  included  in  the 
"ailditional  claims"  set  out  in  the  preamble  of,  and 
appendix  to,  the  ("onventioii  of  Kehrnarv  S,  18!tfi, 
cannot  he  allowed  l)y  this  IIij:h  ( 'ommission,  even 
if  tliere  was  sutlicient  evidence  to  establish  such 
claims,  which  the  I'nited  States  insi.st  there  is  not. 


THE    THORNTON. 


361 


In  rct'crt'iicc  totlic  it<'iii  tnr  lc<:iil  cxin'iiscs  iit  Sitka, 
tlic  Iffcunl  (liscliisfs ; 

*}.  Von  cluiiKC  «"»(M»  exjiensus  at  Sitka  in  (•((iiiiectioii  with  H.,  hit,  liim 
tlie  sciziin-  of  the  Tlmnitini.     W'linl  does  tliat  mean  f  '•'■ 

A.   Lejjai  cxpeiisi's. 

(}.  Legal  »'X|]»'iis«'8  at  Sitka  in  <(>iiii«'<!tion  with  the  seizure? 

A.  Well,  (lie  (;a|itain  eniployetl  a  lawyer  up  there,  or  a 
lirni.  anti  it  a|>pears  that  they  had  arranged  to  appeal  these 
eases,  and  he  drew  on  me  for  ••'."»(H». 

(}.  That  is  the  reason  that  you  ehaige  tiiat.  As  a  nnitter 
of  fact,  you  have  not  paid  it '. 

A.  I  did  not  pay  it.  //«  Iiks  hirn  jiniil  sumr  minicji  tliiit  ire 
ihonijlil  irtis  vitjht.  I  told  him  I  had  put  the  elaim  in,  and  it 
it  was  allowetl  lie  would  get  it. 

ii.  Who  was  that :' 

A.  Clark.    1  forget  the  name. 

The  citsc  ot'  tilt'  Tlioniliii/  w.-is  nut  ii|»]iciilc(l.  iin<l 
tln' iiiiioinit  (if  the  rt'taiiU'i' (U'liiiiiHlcd  i»\('lark  was 
excessive,  tlic  services  (•<tiisistin<i  in  tilinji-  a  demurrer Aiip.  n,  \>. 
and  answer  tn  the  liltel.  Fur  these  services  lu-  ap-  '*'*■ 
]M'ars  to  have  l»een  paid  a  reasuiialde  sum,  l)ut  tin- 
actual  amuunt  is  nut  in  evidence.  The  I'liited  States 
therefure  claim  that  the  uwner  did  nut  liecunu'  uhli- 
oated  tu  pay  any  further  stun,  and  as  the  amuinit 
j»aid  is  nut  established  it  can  nut  l»e  allowed. 

The  item  "fur  travelinji,  hotel,  and  uther  necessary 
expenses,"  in  cunnectiun  with  the  said  seizure,  a  claim 
1}^  ^1.(10(1  is  stated  1»\  (.'aittain  Warren  t(»  have  heeii''".  "n, 
"/"^/  "  /"'//•'  ■'"uii."  lie  stated  that  in  cumiectiun  with 
this  he  nnnle  two  trips  tu  ( (ttawa,  une  tu  Sitka,  and 
that  une  uf  his  trips  tu  Ottawa  was  extendeil  tu 
Washinotuu  in  1S!I().     The  Kecurd  further  discl»»ses: 

i).  .\nd  vou  eharged  for  traveling  expenses  SJI.OOO  in  each  R.  !M7,  line 
case?  ■  "- 

A.  I  do  not  remember  what  it  is  in  the  other  cases. 

Q.  Hut  you  went  on  business  of  all  the  seizures  of  1887 
together  with  that  of  the  Tlionitmi  in  KS.Sd? 

A.  Yes. 

i-i.  You  charge  !?l,(Mio  iu  the  Tlidnilon  case.  You  do  not 
mean  to  say,  (lo  yon,  ('ai»tain  Warren,  that  you  expeiuled 
.'*l.(Mi(>  in  traveling  for  the  Thoriitmi  in  l,s,S(!? 


lini 


'^\ 


'!,': 


II    S- 


-4)! 


m 


362 


THE   THoKNTON. 


B.,  917, 
11. 


Ante,  ]i. 
Aute,  i>. 


A.  No;  I  have  not  stated  that  I  s|M<nt  a  i!*l,UOO,  a  consid- 
erable tiuie. 

(j.  Vou  undertook  all  your  claini8  togetlier  when  you  went 
to  Ottawa? 

A.  When  1  went  to  Ottawa;  yes. 

Wiinvu  !it  the  tiiiK'  wjis  the  ivpn'si'iitntivi;  of  tlio 
other  rlaiiiiMiits  aj^iiinst  tlic  I'liitcil  Statt's.  Tlu'  evi- 
''"'•ilenco  <liH's  not  estalilisli  tliat  in  tin*  cas*'  of  this 
vi'ssi'l  th»'  sum  stated  was  cxpi'inU'il,  and  from  a 
(lomparison  of  the  amounts  charficd  tlic  otlu-r  chiim- 
ants  as  tlu-ir  ]»vo  rata  share,  wliich  was  nljout  >^1 '»(), 
the  claim  here  made  is  not  oidy  excessive  and  exorlti- 
tant,  l»ut  can  not  Im-  h-yally  n-covered  against  the 
I'liited  States,  as  any  such  expense  was  incurred  in 
the  preparation  of  the  chum  for  presentation  to  the 
<'overnm«'nt  at  ( )ttawa. 

The  item  "Fee  to  counsel,  and  for  other  lejial  ex- 
penses in  connection  with  the  preparation  of  the 
claim,"  is  founded  upon  no  evidence  of  the  lial)ility 
of  the  claimant  to  pav  su«'h  sum,  or  of  the  services 
which  were  performed  for  which  tlu'  char^iv  is  made, 
it  is  then'fore  claimed  that  then-  is  no  itasis  on  which 
an  award  can  he  made  for  this  item. 

The  charji-es  in  the  schedule  of  ^G,\)'tX  for  " bal- 
ance of  catch,"  >;'.IOO  for  coastinji'  purpo.ses  for  three 
months,and  of  >»."».()(  10  for  "estimated  coast  and  Merinji' 
Sea  catches  for  the  year  1SH7  (net  value  of)"  are  for 
prospective  profits,  and  can  not  he  allowetl  in  any 
ev«'nt,  the  vessel  havin<r  l)ecome  totally  lost  to  her 
owiu-r. 

The  claims  for  the  "value  of  the  ves.sel,  >»7,(HK>, 
expenses  and  hardships  of  crew,  13  men  at  ^^oOO 
each.  >*6,."j(Ml,"  and  the  personal  claims  of  (Juttorm.sen 
and  Harry  Norman,  have  heen  considered  elsewhere. 

The  damajies  sustained  hy  the  claimant  hy  reason 
of  the  seizure  of  the  '/'lionitoH  were  the  value  of  the 
vessel  in  the  condition  she  was  when  seized,  on  the 


;t(r.. 

HI!». 


THK    TIloliNTUN. 

iiiiirkct  !it  \'ictunii  at  that  fiiiu',  tlu-  market  value  of 
inic-halt'  of  tlic  artick's  not  properly  iiicliided  as  a  part 
of  tlie  vessel  itself  in  the  coiulitiou  ami  at  the  time 
when  thev  were  taken  from  tlu-  schooner,  ami  oiie- 
jialf  of  4(>;{  seal  skins  at  the  jiriee  ruling-  in  the 
market  at  N'ictoria  at  the  time  when  the  vessel  would 
iu  the  natural  eourse  (»f  events  have  tlischargeil  her 
ear<i'o  at  that  port  in  18H(i, 


3(i3 


i.-l.i 


!:' 


i 


A|>|>.  it.  Ii>l 


A|i|i.  n,  (I 

liiii'  'JO. 


THE  ONWARD. 

Cl-AIM    No.   .'{. 

riit'  Onirtifil  \\i\-  \\  sflKMiiicr  nt  ,'{."», 20  rc^ii.^tcrcil 
tons.  < 'liiirlfs  S|)riii;i'.  ii  sulijcct  of  ( licitt  liritiiiii,  iiiid 
AlcxMiulcr  .Mcl.ciiii,  it  citizen  of  tlic  riiitcil  Staffs, 
wtTf  |»!irtmM'.s  uiiilcr  flu-  linn  nnnic  of  ( '.  S|irin;i'  *V: 
("o.,iilitl  t'(|il!il  owiicisof  tlic  vcssrl  nt  flu-  time  of  lu-r 
sii/.urc. 

Ill  1SS6,  iift«'r  ii  .xcjiliiiji'  'i'i|»  ill  tlic  s|)riii;:-,  slic  fnnis- 


K..i<«:i,lii 

1'.') 

A|i|>.     II, 

.■>li 

liiii-  .'>!). 

K.,  X". 

ill) 

W. 

R..    t!l. 

iii> 

10. 

A).)..    Ii. 

lil 

Iinr  Id. 

API".    II. 

or. 

liiii'  I'd. 

Aiiii.  It.]! 

•''", 

Iiiii'  III. 

Ai.|>.  Il.p 

IIX 

lillr   .'III 

l> 

71,  line 

L'l 

A  pp.  II,]!.  "I 

liiii'  III. 


THE   ONWAUU. 


(Ml  tlic.HOfliiliiy  ..»'  htTciiilu'r,  issd.Cliiiilcs  S|.nii;i- "•.•,/'*' 
mill  Alcxiiinlcr  Mfl^cnii  ciitcn-il  into  iiii  iiyn't-mt'iit  .\|T|i.  h. 
dissnlviii;;'  their  pfirtiicrsliip.  In  tlic  t'lirly  psirt  of  '""'- 
iSSf},  ( '.S|)nn;>'  iV:  <  'i>.  mwiiciI  tlin-c  vessels,  tlie  Ftinuir- 
ih;  the  Kiitr,  iind  tiie  (hiininf.  In  the  !i;iTeeineiit  t'nr 
•  lissolution  Viihiiitioiis  were  |iliieeil  ii|Min  the  i'unnuitr 
iiml  Kiilf,  lint  IK)  nthiiifiiiii  irns  ft/m  'il  ii/inn  tlir  Oininrtl. 
As  MeLeiin  (li<l  nut  flesiic  to  continne  longer  in  the  l>'..  «'-' 
hiisiness,  Spring  pnrchiiseil  his  sliiire  of  the  pfirt- 1-,  .-,112 
nershi|i  property  tor  iiiioiit  >il,lU(l,  Imf  the  (hnninl  •"'■ 
il'fls  iiiit  iiirhiifnl  III  Hir  liinis/ri;  wliieli  Wonid  li;i\e  lieell 
done  liiid  the  owners  nntieipfited  lier  lecoverv.  A 
liJilt'  interest  in  the  clniiii  ji^iiinst  the  I'liited  Stiites 
tor  tlu^  si'i/.nn'  of  the  Oiiinntl  wiis  retiiiiied  inider  thei;.,  sin 
!i;^reeineiit  liy  eiicli  piii'tiier.  This  evidence  is  eon-  •'-'• 
elusive  of  the  fiiet  tliilt  the  Oiiiraiil  wms  m  totiil  loss  to 
her  owners,  iind  wiis  so  eonsiilered  l»\-  them. 

While  the  schooner  Wiis  in  the  hiirltor  of  I'liiiliiskii 
nil  inxt'iitorv  WJis  iiiiide  Itv  1111  ollieer  of  tiie  Ciiiiriii, 
;iivili;i'  ii  detiiiled  stjiteiiielit  of  the  property  seizeil 
and  its  condition.  This  inveiitorv  wns  olVeivd  in  evi- 
deiieeoii  iiehiilf  of  theclfiiniitnt.iind  appeiirsiis  Kxhiltit  App'  "• 
No.  32  ((;.  M.).  (Miiiiii  No.  .-i.  •'"•""• 

There   iilso  iippears  in  the  testimony  taken  during' 
the  proce«'din^s  at  Sitka  a  statement  of  the  arms  and^i,,,    k 
aiiimnnition  delivere(l   liv  the  To/vr/'//   to  the   I'nited      "<• -0- 
States  marshal  at  Sitka. 

The  articles  contained  in  the  inveiitorv  and  in  the 
last  statement  referreil  to  are  the  only  property  for 
which  the  I'nited  States  is  lialile  in  any  event.  The 
artitdes  covered  in  the  item  "unconsumahle  sealinj;' 
ontHt"  an*  included  in  the  inventory. 

I'lider  the  schedule,  which  appears  in  the  .Vij.jiiment 
oil  behalf  of  the  claimants,  seltiii"'  forth  in  detail  the 


line 

J'.  ■■•-'■ 


line 
liiii' 


liut 


daiiiam's   claimed  for   the  Oiiininl.  there   is   imduded 


an 


Till 
mariiiiial  refereiict'  uiveii  is  to  a  statement  of  ( 'liarle: 


item   '*  Preiiiiuin  of  insurance  |iaid,  !^24u.' 


,  K.,    S(JM,     lil;, 
tiS. 


3Hti 


r- 


!{.,  Ni;). 
u. 


K.,  W«. 
•J2. 


U..  S74. 
5!>. 


lilK' 


lllIK 


liix 


I'lIK    ONWAUl). 

S|ii'ii>;i,  in  vvliit-li  it  ii|i|i«-iirs  tliiit  li«-  paiil  i>ri;:'iiitilly  tor 
illsiiriiliff  oil  tlu'  Nt'sscl  N'JiKt,  iccciviii;;'  ii  rflmtc  of 
>»2<>.  lit'  iiofs  not  sliow  wlit'ii  this  iiisiirjincf  wiis 
I'H't'clcil,  nor  lit  wliiit  tiiiic  tilt-  policy  Wiis  cniicclfd. 
It  is  fitiinifil  on  tin*  |iiii't  of  tlu-  I'niti-il  Stntcs  tliiit, 
lis  tilt'  owners  liini  rcct'ivftl  tin-  lit-nt'lit  of  tlif  iiisiir- 
aiifi'  to  tilt'  tiiiif  of  sfi/ni-f,  iiiiil  itn-siiMiiiMy  tlif  t'lill 
rt'ltiitf  tVoiii  tliiit  tiint'  to  tlif  fxpinititiii  ot  tlif  polify, 
tlif\  siistiiiiifil  no  <liiiiiii;:'f. 

Tlif  iliiir;^!'  lor  "  Niiif  fjiiiofs  iit  i^i*-.  >«2r»'_',"  is 
tilitiiiiifil  tVoiii  till'  fviilfiiff  of  Sprin}^,  in  uliit-li  lit- 
siivs  tlijit  tlif  fjiiiofs  with  tlifir  oiittit  wiTf  worth,  In- 
"  wonltl  siiy,  N2')  filch — X'2fi  or  i^'JS — iinywlifri'  in 
tliiit  nfi;;hl»nrlioo(|." 

I  If  iilso  Ntiitfil  tliiit  hf  hiiil  ti  lifii  on  tlif  ciinofs  tor 
inlviiiicfs  niiiilf,  iiml  thiit  tlu-y  wtTf  piirtly  owiifd  1»\ 
liini  tniil  /itdtl     -//  ''"   lii'l'"""- 

III  his  cro-       Nitiiiiiiiition  he  tfstitifil: 

t).  Tlif  iitlvaiK  I'  tliiit  yon  lUiidp  t(»  tin;  Iiitlians,  Juiwt'vi'r, 
is  11  part  of  tlif  iiioiii'y  wliicli  yoii  cliai'^ftl  us  paid  tii  lliein, 
is  it  not? 

A.  Ill  stnni'  cases. 

i),  St>  it'  yiMi  ri'ct»vcr  lor  tlie  vahif  «)t'  tlie  i^niioes,  so  far  as 
yonr  lien  is  coiiccrnt'tl.  aiitl  the  money  wliiih  you  claiincil  to 
pay  tlif  Indians  yon  wonltl  be  recovfrin^t  the  siiinc  ino  ley 
twice  in  some  instuncesf 

A.  In  some  instances:  init  in  siieli  a  case  as  tliat  tlie 
Iiitlians  wttnlil  be  diargcd. 

().  Wliat  tlo  ytm  mean  by  that ;' 

A.  When  I  say  the  ludiiins,  I  mean  the  Indian  hunters 
wtiultl  be  eliar^etl,  that  woultl  be  deiluctetl.  and  in  tither 
cases  it  was  ii  ilirect  purchase  from  the  liitlian  that  owiietl 
the  canoe  in  tirtler  to  make  the  cttmpiement  to  send  out. 

if.  That  was  in  the  case  where  you  tlirectly  luiichasetl  the 
canoe  i 

A.  Yes. 

().  lloic  wain/  iHHocx  i\i*l  jiitii  ijinvllji  piirvlmscf 

A.   /  sIkihIiI  think  Hiniie  llinr  orjhiir. 

Thf  I'nittMl  Stiitfs  iiisisi  tliiit  in  view  ot"  this  tfs- 
tiiiionx  of  Sprin;;-,  oiif  of  tiiv  ttwiifis,  this  fluini 
should  hf  coiitiiifd  t.i  tiif  tliifc  fiinofs  iit'tuidly  pnr- 
fhiisfd.  iind   thiit   thfir  Miliif  shoiiltl  itt-   tixt-d  iit  thf 


.. 


THi;   ONWAKI). 


367 


8  that   tlie 


UP 


litwtT  li^i'iirt'  ;iiv('ii  liy  the  witness.     Tlit;  iiidi.  -v  pnid 
tlic  liiiliiiiis  is  iiirliiiltMl  ill  tli**  Viiliic  ot'tlic  sfsil  siiiiis. 

All  item  ii|»i»c)irs  in  tlic  scIkmIiiIc,  "'rwclvc  ;iiiiis,  at 
N'if),  s;{Ot»."     TIm'  tcstiiiiMiiy  of  Spniiy'  in  n-iiitioii  t..";,^""'^-  •' 
this  clijiryc  sliows  tliiit  tlicv  were  l»r«'t'cli-|i>ii(liiiy  and 
iniiz/h'-luadiii;;'  slmtjiiins.      lie  also  says  nt' tlicni  tliatK.,  stu,  liin- 
*' tlicy  were  an  nld.  liiw-^iTadc."  mMiii;   and  that  a  por-    "' 
tioii  (if  tliciii  were  nwiu'd    l»y   tht-   hiiiitfrs,  al»oiit  six     '      '   "'"' 
or  seven  Itelon^iny  to  the  owners  of  the  vessel. 

Tile  I'nited  States  riaiiii  that  the  jiiins  whieh  were 
actually  the  property  of  the  owners  of  tlie  srhooiier 
are  the  only  ones  whirli  can  lie  considered. 

The  item'  "( 'ost  of  defense  at  Sitka,  >*'i(in,"  is  liased 
on  the  followiii;.i'  testiiiioiiv  of  Spriiij;': 

i).   Now.  were  yiiii  put  t(>  any  Icnal  expL'ii.sc  at  Sitka,  cir  i;,,  sTii.  lim. 
WHS  tluTc  a  cliar;;*'  made  ajjainst  yon  ?  ."'i>. 

A.  TlitTe  was  a  cliarKO. 
(i>.  Wliat  was  tln^  ainuinit  of  the  charge.' 
.\.  «."»(»( I. 

(,>.  I>i<l  your  captain  draw  on  yon  tor  it? 
A.  No;  lie  did  not. 
{}.  Did  y(Hi  actually  pay  it  J 
A.   It  is  not  actually  paid,  liiit  it  will  have  to  be. 
I).  Were  yon  sued  for  it,  and  jndfjineni  oblaineil  ayainst 


you 


f 


A.  Yes. 

{).  Do  you  know  how  you  were  snininoned  to  apiiear? 
A.   /  think  it  must  harv  liirii  sent  down  In  niv;  I  really  do 
not  reiiieiiiber,  now. 

A  transcript  of  the  jiidjiinent  here  referred  to  is  not 
prodnce(l,  and  no  jndjiineiit  could  iiave  lieeii  recov- 
ered under  the  hnvs  of  the  I'nited  States  liy  aiiv  sncli 
.servi«'e  as  is  su^ioested,  and  there  is  no  evidence  to 
show  that  there  was  any  eiiiployiiient  of  an  attoriiev 


l)V 


th 


10  owners   tlironjili   whicii    tlie\    lieciiiiie    lial)lt 


l)h 


to    pay   the    ainount    char;ied.     'I'he    lejial    .services  Api'- "'"^ 
whicdi  a))pear  by  the  U'econl  to  have  been  jierforined 
on  helialf  of  tlie  owners  at  Sitka  consist  of  the   Hlinjj- 
of  a  demurrer,  an  answer  to  the  liliel,  a  motion  t<»  set 
aside  the  (h  free,  and  a  notice  of  appeal. 


Bl;,  ■ 
it 


3(iS 


Till'.    ONWAKl). 


ii 


li.,    Tl. 

.'ill. 


lint' 


U..  S7(i, 
.Ml. 


K..  S7(i, 
IS. 


liiK 


liiii 


Aiiti'.  p. 
Aiit.'.  I>. 


:!(is. 
:il!i. 


'I'lic  item  ".Muiicy  <i'ivt'ii  to  the  Indijiiis,  xl.')."  is 
|ii('siimiil)l\  Itiiscil  ii|i<>ii  ii  stiiti-iiu'iil  of  .loliii  .Miii'kc- 
ticli,  till'  lUMtc,  tiiMt  lie  liiivc  to  tile  linliiUis  ''suiuf- 
tliiiiii'  Ix'twi'cii  ten  iiiiil  tittccn  dnlljirs." 

'I'lif  I'liitfil  Stiitcs  ilciiy  ;iiiy  liiiltility  tor  tliis  iiioiit-v 
loiincd. 

Tlu'  cliMi'j:-!'  tor  >^\^i'2  \y,\'u\  in  coiiiicftioii  with  |tr('scii- 
tiitioii  ot'  cljiiiii  ;it  ( )ttii\vii,  wjis  iiicinT(Ml  in  iiiiikiiij;'  tlic 
(•l;iiiii  ii^^iiiiist  tlic  riiitcd  Stiitcs,  iuid  fiili  Hot  lu'  id- 
lowed. 

The  item  "Hclycirs  cliiirj^cs,  s|^()()()^"  should  not 
Itc  trt'iitcil  iis  (hiMiiiucs  snstiiin(M|  h\-  the  chuiiiiUit.  lor 
thf  rt'iison  thiit  it  is  i-xorhitiint  iUid  tliiit  there  is  no 
ieji'id  oMiiiiitioii  shown  Ity  the  K'ecord  on  the  |tin*t  ot 
the  owners  to  |»iiy  the  iiuioiint. 

Tile  item  "  I'ersoiiiil  eX|»enses.  >;,'{0(l,"  is  .-^o  orosslx 
excessive  th;it  it  deiiiiinds  |)iirticiiliir  iitteiition.  'I'liere 
is  no  evidence  thiit  ( 'luirles  S|»riiii:-  h-l't  N'ictoriii  iit 
iiiiy  time  on  iiccount  ot'  these  chiims.  liis  ex|K'nses  in 
coiiiiectioii  with  them  lieiii}^-  |iostiij:'e  in  corres|Hindiii^' 
"with  dilierent  iieo|)h'  in  connection  witli  the  niiitter, 
l>oth  lit  Ottiiwii  iiud  Sitkii — ditVereiit  olHciiils  ii|>  tliere." 
lie  iilso  stiitcs  tliiit  he  hiid  "heeii  to  ii  j^TCiit  fh'iil  of 
tfoiilde."     Such  ii  cliiim  sh(.iild  not  lie  consi(h'red. 

The  items  "Kstiiiiiited  \idiie  of  jirovisions,  iimmii- 
iiitioii."  etc.,  iind  "  Kstiniiited  vidiie  of  iiftich's  wl'uh 
were  doilhtless  on  lioiinl  tlie  vt'.s.sel,  l»llt  wliicli  ciin 
not  i)e  s|ieciiicidl\'  mentione(l,"  jire  liiised  n|)on  no 
exideiice  whiitsoev cr. 

The  iiems  "\'idiie  of  vessel."  "  Kx|ien.M's  iind  hiird- 
shi|i  of  crew."  iind  the  personid  cliiims  of  Monroe, 
iiiiister.  iind  .Miirketich,  iiiiite.  iire  fully  discussed  iit 
iinother  itliice  in  this  .Vriiimu-nt. 

Tile  items  "  For  liidiince  of  ciitcii  for  tile  reniiiinder 
of  the  seii>ioii  lSS(!"  iind  "Net  \idile  of  estiniii'ed 
coiist  iind  Heriiiii'  Sen  ciitciies  for  the  \i't\v  1SS7"  iire 
for  |ii'os|ie('tive  jirolits,  iuid  ciin  not  Ite  idlowed  in  iiny 
i'\cnt.  iis  tile  N'essei  lieciime  ii  totiil  loss  to  iier  owners. 


THE  FAVOURITE. 
(^LAIM    Nt).    4. 

The  FiiniKi'ilr  wiis  wiinu'd  to  Iciwc  nci'iii;^'  Sea  1)\- 
th(^  United  StJitcs  ivveiuic  ciittiT  /liclinnr lliisli,  i\t^^i^^'-'-'''  ^'"'' 
about  2  o'clock  in  the  nioniiny  on  tlic  2(1  diiv  of 
Auji'ust,  1SS(;.  'I'Ik'  vessel  (lid  not  ohevtlie  wMriiinji', 
but  continued  her  seidinji'  voviijie  until  the  l!)tli  diiv 
of  Auj-ust,  when  the  captnin  says  he  had  completed  R.,  i;t;u,  lin.' 
his  huntinjj'.  "*• 

Oharles   Sprinii-.    ii   subject  of  (Jreat  ih-itain,   and 
Capt.  Alexander    McLean,  a    citi/en    of  the   United 
States  of  America,  were  e(|ual  owners  of  the  Fiinniriff  ^    ,.(„..  ,|„,, 
at  the  time  of  the  seizure  in  18S(;.     The  profits  of  the  '  ii.  lim>  ui. 
voya<-'e  were  to  be  e(pially  divided.     The  i»artnership 
between  Sprinjiand  McLean  was  dissolved  in  Decem- 
ber, ISSC,  and  at  that  tinu'  the  two  partners  took  nn  ^'j;;!.'oo,'','|"l 
equal  interest  in  the  claim  ajiainst  the  ({o\eriunent  of    iiii'it'',i">K« 
the  United  States.  '''-■ 

The  (lovennnent  of  the  United  States  claims  that 
the  owners  of  this  ve.s.sel  failed  to  establish  that  they 
had  suffered  any  damaji'e  whatever  l)v  reason  oi'  the 
warnin<«-  ••■iven  by  the  cutter. 

Captain  ^icLean,  who  was  sailing'  the  Diroiiritc  .,t ''•■..i:""' ''">■ 
the  time  of  the  warninn',  testified  thiit  he  did  not  con- 
sider that  the  claim  was  a  le-iiil  one,  and  that  he  made 
no  claim  for  dama^ics.  The  other  owner  was  not 
aboard  the  vessel,  and  no  other  person  i^ave  any  tes- 
timony of  importance  re<iardin<i'  the  claim. 

The  ves.sel  contimied  her  voya<i-e  uninterrupted '''•""•  '''"' 
tliroufi'liout  the  entire  sealin-''  season,  when,  having' i;..'i;i:«i,  line 
taken   •_>,25:»   seal  skins,   (ITA  beinjr  taken  after  the    "" 

B  S 1"  ;169 


370 


THE    FAVOURITE. 


K.,  loiil.', 
50. 


1.'..  13(U 
I. 


\i..  13211, 

;j7. 


:,i  I. 


K.,  13*1, 

lii). 


R..  i:!;!i, 
IX. 

Iv,.  Kw:i, 
u. 


■\V!irniii<>',  slio  siiili'd  tor  Viotori.i,  liuuled  her  catch, 
aiitl  enjoyed  tlic  hciu'tits  tlicivot". 

'Vho  iiii<lcrstiimlinji'  bi'twccn  ('liarlcs  S|)rin<i'  ami 
Captain  McLean,  before  the  luivaiirifc  saih'd  tor  Mo- 
ring  Sea,  was  tiiat  tiie  ((ne.stion  of  the  (hiratioii  f»f  the 
voyage  shoiihl  he  K'ft  entirely  to  the  discretion  of 
tlie  captain.     Spring  says: 

line  *h  '*iil  ,v'"ii  give  any  instnictioiis  wlieii  tlie  vessel  was 
leiiviiifj  as  to  when  slie  sliouhl  leave  the  lieiinj;'  Sea' 

A.  Not  i)articnhii-ly  in  the  case  of  the  Faniitriti:  Know- 
ing;; that  Alexaniler  5lcLean  was  captain  and  an  interested 
l»arty,  1  took  it  lor  j;ranted  that  he  wouhl  ii.se  his  own  judg- 
ment anyway  to  tlie  best  advantage. 

<}.  To  what  ell'ect  was  the  understanding? 

.V.  That  he  was  to  stay  as  h)nj;  as  possible. 
lino     <i>.  You  yourself  had  never  been  in  lierinji  Sea  ". 

A.  Xo;  not  at  tliat  time. 

Q.  .Vnd  yon  practically  knew  notiiing  of  the  clo.se  of  the 
season  in  IteringSca? 

A.  Xo. 

<i».  And  Capt.  Alexander  McLean  had  bad  former  experi- 
ence ? 

A.  Yes. 

(}.  And  you  left  the  matter  to  him  entirelv  ? 

A.  Yes. 

'i"'^'  ('a])t;Mii  .McLean  was  calU'd  as  ii  witness  on  helialf 
of  the  I'liited  States,  and  testitieil  that  he  was  half 
owner  of  tlie  luinniriti-.   that  he  kept  a  log  of  the  vov- 

liiioage  of  the  Funuififr,  which  he  proihiced  for  inspection. 
FAimiined  as  to  the  nnniher  of  seal  skins  taken  after 
the  warning  was  given  l»y  the  cutter,  Mcl.,eaii  said: 

line     i).  You  took  about  (i7.">  skins  after  y./ii  were  warned  .' 
A.  Yes,  sir. 

().  And  turned  them  over  to  Mr.  Spring  or  your  partners 
here .' 
A.  Yes,  sir;  and  brought  them  to  Victoria  and  sold  them. 

Cross-examined  with  reference  to  tlie  voyage  of  the 
Fiiraiirifc,  this  witness  testitieil: 

li'i'-     (,).  Why  did  yon  leave  the  sea  on  10th  August  (l.S,sr>)? 

A.  Tlie  season  was  juctty  well  closed. 
lino     ().  When  yon  left  for  tiie  Itcring  Sea  in  ISSii,  as  master  of 
the  Fitrmirilv,  when  did  you  intend  to  eoine  back? 


THE    FAVOURITE. 


871 


A.  1  iiiteiuk'd  to  be  back  liere  (Victoria)  between  the  Ist 
ami  lotli  of  September. 
Q.  Had  you  any  special  reason  to  come  back  at  tbat  time? 
A.  Well,  1  used  to  fit  out  for  tbat  time. 

l)(MliU'tin<>'  11k'  tiiiic  ('hiisuiikmI  in  iuiikin<i-  tlic  rt'tuni 
voyjtji'e  fmni  MtM'iiij:'  Sea  to  \'iet(>riji,  tliu  Faroinitr, 
had  slic  arrived  in  Victoria  on  tlu'  1st  of  St'ptt'ndit'r, 
would  have  U'tt  lVrin<;'  Sea  about  tlu'  Kith  ot"  Au<iust. 
As  a  matter  of  tact,  she  continued  her  voyajie  until 
the  I'Jtli. 

In  the  Ar<iunient  on  helialt'  of  fJreat  Britain  tlie 
te.stiniony  of  .McLean,  where  he  says  that  he  couM 
liave  remained  until  the  1st  of  Seitteml)er  "if  the 
weather  would  pi-rmit,"  is  cited,  liis  testimony  as  to 
what  he  could  have  done,  as  against  his  testimony  as 
to  what  he  did  do  under  the  actual  conditions,  has  no 
wei<>ht. 

Captain  McLean  was  examined  rejiardinji'  the  timeij.,  kc,  liue 
that  he  considereil  the  sealing-  season  in  Uering-  Sea    •''•' 
clo.^ed: 

Q.  What  time  did  you  leave  the  ISering-  Sea  in  the  Man/ 
Ellen  * 

A.  I  can  not  exactly  say,  but  jaobably  about  the  -'0th  or 
25th  of  August.    1  am  not  sure. 

Q.  From  your  experience  what  would  you  call  the  end  of 
the  .sealiug  season  in  IJering  Sea  in  the  years  IS.Sd  and  1887! 

A.  About  the  Mth  of  A  \i<junt  I  woiilil  ronsithr  the  end  of  the 
season.     I  ntsed  to  leave  the  sea  then. 

(i.  How  many  years  did  you  leave  the  Bering  Sea  about  H.,  403,  lini» 
the  IKth  or  20th  of  August,'?  •''^■ 

A.  In  188.'$  the  last  lowering  we  had  in  the  Bering  Sea 
was  on  the  10th  of  August,  lu  \S^Ti  on  the  23d  of  August. 
In  1880  on  the  IDth  of  August.  In  1887  on  the  lOth  of 
August.  In  1888  on  the  19th  of  August,  and  in  1880  on  the 
25th  of  August. 

In  the  Arfiument  liled  on  hehalf  of  Great  Britain  it  is 
clainu'd  the  Fdroiiritr  materially  changetl  her  location, 
and  left  what  is  tenned  "the  hest  sealing'  grounds." 

The  voyage  of  the  Man/  FMoi  for  the  year  1«S(,  A',«;'j;|;;-;.'t;;>;, 
is  citetl  in  the  Argument  as  showing  exactly  the  loca-  (Jrent  lirit- 
tion  of  the 


'best  sealing  grounds"  in  the  Bering  Sea. 


niii.   |i.  tiO. 
liueL'll. 


li^ 


372 


THE    FAVOUKITE. 


Kot'i'iTiii;.;'  to  |»!i<ii'  "JlliS  of  the  record,  line  ");"),  whore 
tlie  witiK'ss  Williiiin  'V.  Hrii;;<>'  \v;is  cxjiiiiiiUMl  ri'liitive 
to  tin'  jiroiiuds  over  wliicli  tlie  Mm//  Elliii  ciirried  on 
Iier  seidiiij;'  operations  in  the  year  ISSG,  this  testi- 
inon\'  is  found: 

(i>.  Give  it  to  us  generallv  (the  location). 

A.  Hetwoeii  .Jt^  .io'  amr  :)5'' north  latitndc.  and  KiS^  to 
KiiPSO'  west  longitude.  1  was  always  under  the  impression 
that  tliat  was  the  latitude  and  longitude  wc  were  hunting  in. 


("aiitiiin  .McLean  did  not  testily  that  he  chan-^cd  li 


IS 


seainiji'  grounds  on  account  ot'the  seiziu'e,  and  reterrnig 
to  the  positions,  as  found  in  the  loj^-,  produced  l)y  that 

ited 


(iroiint 


nu) 


witness,  it  will   he  found   tliat  the   i 
iver  this  "hcst  sealiu"'  "Tound"  aftoi'  llie  dat(>  of  ll 


le 


Log  of   till' wai'uiuL;'  .yivi-n   l)v  tlie   Tnited   States   cutter.      Tier 
|)ositions  were  An^^'ust  "_',  '>\'^  50',  l(iS"'  49';   Auii'ust  8, 


I'nroiir  i  le 
year  issii, 
Kx.s,  r.s. 

oliiiin  No.  I. 


■)4'    40'.     liiS 


f)( ) 


A 


UliUS 


t   4,  .".4"  3!i',   Kilt' 


IV 


Aui-ust .'),  r)4'  ;}■)',  168"^  40';  Aui^ust  (1.  .")4'^  AO',  170" 
07'':  Au.n'ust  7,  .v.''  0(1',  170^  40';  Au.uust  S,  -y^  ol', 
170'  Ml';  An,uiist  !),  .")4"  4(i',  17P  oi':  An-iust  10, 
'ti')^  o;V.  170-  4(t':  lltli  and  12th,  position  not  ^iveu; 
Aui-ust  U>,  .")4-  4."»',  KiS  17':  Au^iusl  14,  .5')  24', 
IfJS^  3.')';  Au-iiist  1.").  ").")^  30',  ICD^  10':  Au-iust  Hi, 
56^  1.")',  166 ''ir.'  30":  Auj-'ust  17,  ;").">"  40',  K;.")^  30': 
Auu-ust  IS,  .-,.-)M2',  16")'  40'. 

The  position  occupied  Itytlie  sliip  after  the  2d  dav 
of  August  is  at  no  time  l)eyond  171  west,  and  al- 
ways hetween  ."»4  3.")'  and  i'tG  lA',  which  is  exactly, 
accordinji"  to  the  charts  citeil  in  the  Aro'Uinent  on  he- 
half  of  (Jreat  IJritain  and  accoi-diny'  to  the  AriiUinent 


itself,  "thebestsealiu"' "rounds"  in  Heriu"-  Sea. 


^rh 


position  occupied  on  the  16th,  17th,  and  18tli  of  Au- 
uust  is  dii-ectly  hetwi'eii   rniniak  Pass  and  the  I'ri- 
Itilof  Islands,  the  waters  hetween  which  are  the  "jireat 
hii:hwa\-  of  the  seals,"  accordinu' to  the  claimants. 
The  claim  is  made  that  the /•V^/v>/o//r  did  not  chan;;'e 


her  iJTounil  until  the  4th  of  Aui>'ust,  evi( 


lentl 


\   to  ex- 


vt 


THE    FAVOL'RITK. 


373 


plain  iiwiiy  the  ciitchcs  maile  on    the   2(1  and  vid   of 
An;>'ust,  anioinitinji'  to  'JdO  skins. 

'I'lie  Fiiruiirilc  occupicil  on  the  hx\\  of  Auji'iist  al- 
most fxactly  till'  sMnic  position  slic  occnpicil  (»n  tins 
2(1  and  ,'5d,  and  occnpicd  the  snnic  position  aji'nin  on 
the  I3tii  and  1  Itli,  and  on  tiic  KItli,  17tli,  and  IStli 
Avas  hnntinjr  in  tlic  most  t'livoraljlc  location,  accordinj^' 
to  the  claimants,  in  the  entire  Herinn'  Scji. 

The  chiim  is  also  made  that  she  oulv  lowered  her 
canoes  on  the  2d,  3d,  lOth,  inid  llitli.  '  The  ha  sis  of 
this  stiitemeni  is  ol)tain(^d  I'rom  pnye  ">,  known  as 
Exhibit  Xo.  !),  United  Stat(fs  (daim  No.  4,  of  the  hook 
kept  iiy  ("apt.  Alexander  .M(d.ean,  in  which  the  total 
miml»er  of  scids  tnken  wms  recor(KMl.  That  hook 
does  not  pnrport  to  cont;iin  m  statement  of  the  lower- 
in<>' days.  On  the  contrary,( 'aptnin  .Mid.ean  directlv 
testilied  that  the  {i<:nres  in  this  Ix.ok  were  compiled 
from  a  little  hook  kept  on  hoard  the  vessel,  and 
which  contained  ww  accoimt  with  ciich  Indian  hnnter.  R.,  i:«LMino 
That  i)ook  was  left  on  i)oin'd  the  Funiuiitr  \\\  the  fall  '*■ 
of  iSSi;,  juid  he  hiid  not  seen  it  since,  lie  testilied 
aji'ain  that  there  was  one  diiy's  cntch  left  ont  in  tla^ 
statement  com[)iIe(l  on  this  pa<4-e,  niinked  Ivxhihit  !•, 
United  States  claim  Xo.  4,  upon  which  day  there  i{..  i:i;{().  iim> 
were  some  llo  skins  tnken.  ■'^^■ 

In  the  Arjiinnent  tor  (ireiit  IJritfnn  m  map  is  referred  Arjrnm.Mit  on 
to  which  was  prepnred  by  C.  II.  Townsend.  assistant,  ''"''■'•''"' 
U.  S.  Fish  Commissioner  iis  teiidin;^-  to  show  the  loca- 
tion of  tlio  "sealing-  •••roimds."  The  original  of  this 
chart  is  found  in  jiart  2  of  the  report  known  as  Sennto 
Doe.  137  of  the  tirst  session  of  the  Fittv-fourth  ( !on- 
.H'ress,  and  n[)on  referrim;'  to  jtimc  "t3  of  the  l)ook  in 
which  the  map  appears,  it  will  t)e  found  that  Mr. 
Townsend  had  before  him  a  ciijiif  oj'  /In-  /m/  of'  the 
Fnronntc.  for  f/i/.'<  roi/Of/r  of  Jssh'*     Tin;  chai-f  itself 


(ireat  lUit- 
iiin,  i>ai;(' 
.")!•,  line  IT. 


"  In  tlio  ilofumoiit  rel'criod  tii  tlio  looiitioii  of  tlie  I'avoiinh;  August  I, 
is  priiitiMl  iiniler  d.ite  .Inly  ;!1.  iiinl  tin-  Incation  Aiii;Mst  L>.  nuili'i-  lUitf  of 
Aiij;iist  1,  and  tliis  iiiiNtalve  in  iiiado  witli  reloiuiieo  to  tlu:  location  for 
nach  dav. 


'I! 


m 


3i  • 


374  THE   FAVOURITE. 

sli<»\vs  where  tlie  Fiiroiniff,  between  the  2(1  and 
lUth  (hiys  of  Anjiust,  sejih'<l.  If  the  map  of 
Mr.  Towiiseiul,  basotl  iiixni  the  log  of  the  lutroitrite 
for  this  v<»ya<>e  of  l.SXC,  is  to  l)e  used  as  authority 
ii])oii  tlie  h)eati(tn  of  "the  hest  seaHii<>'  <;rounds,"  tlio 
chiiui  that  the  Fdroitritt-  in  the  year  ISSG  was  not  on 
the  sealinji'  <:roinids  would,  a]>iiarently,  not  he  sub- 
stantiated by  the  documents  used  on  behalf  of  Great 
Hritain  to  demonstrate  the  location  of  "the  l)est  seal- 


Captain  Mel^ean  who,  it  will  be  remembered,  was 
half  owner  of  the  vessel  at  the  time  of  the  voyajie 
and  possesses  an  e(pial  interest  in  the  result  of  this 
claim  before  this  lli;;h  ('onnnission  with  C'liarles 
iSpriuji',  w's  asked  on  i-ross-examination: 

K..  1335,  line     'i*-  I*'tl  >'<•"  ">'  'I'tl  .vo'i  "ot  consider  tliat  you  liad  a  claim 
52.  against  tlie  I'liited    States  liovernment    for   Laving  been 

warned  out  of  IJering  Sea  ? 
A.  I  can  not  say  that  I  did. 
(i>.  I  asic  whether  you  consider  you  liad  a  claim? 
A.  1  considered  tliat  I  liad  forthe  Omrard.    The  Oiiwnrd's 
claim  was  good,  but  the  Ftirouiite^n  I  was  always  in  doubt  of. 
Q.  And  you  attached  no  importance  to  the  matter  at  allT 
A.  No,  sir;  I  never  made  any  claim. 
R..  1336,  line     Q.  You  are  sure  you  did  not  furnish  Mr.  Spring  the  par- 
15.  ticalars  for  the  ]»res('iitation  of  the  claim  f 

A.  Not  to  my  knowledge.    I  never  was  consulted  in  the 
matter  when  he  made  the  claim. 

The  Government  of  the  I'nited  Slates  claims  that 
the  FufOKrifr  continued  her  huntin'f  voyajje  to  the 
time  that  the  captain  considered  the  termination  of 
the  sealing'  season,  giving  no  heed  to  the  warnhig 
of  the  United  States  revenue  cutter,  and  tlnrt  the 
testimony  of  the  claimants  establish  the  fact  that  no 
damage  was  suH'ered  by  reason  of  the  act  of  the  officer 
of  the  cutter. 


the  black  diamond. 

Claim  Xo.  5. 

This  L'laiiii  wji.s  not  ])ivseiite(l  to  the  Trihuiuil  of 
Arbitration  at  l^iris,  and  is  not  in('lu(l('(l  in  the  Con- 
vention of  Fehrnarv  S,  1811(1,  either  in  the  schedule 
attached  thereto  or  in  paninraph  .")  of  tlie  preaniljle 
us  an  additional  claim. 

A  motion  was  made  on  behalf  of  the  Unittnl  States  Pleadings, 
that   tlie    Ili^'h   Connnissioners    "disnii.ss    from   con-    «''"'" -^'"- -'• 
sideration  the  demand  of  the  Covernment  of  Great 
Britain  embraced  and  described  in  claim  Xo.  ">." 

The  <i'i'ounds  of  tlu?  motion  are  that  as  to  the  said 
claim,  in  whole  or  in  |»art: 

1.  Xo  (|Uestion  of  fact  involved  therein  was  sub- 
mitted to  the  Tribunal  of  Arl)itration  c(»nstituted 
un(h'r  the  treaty  concluded  at  Washin-jfton  on  the  21ltli 
of  Ft'bruarv,  1S!I-J,  between  the  Tnited  States  and 
Great  Britain,  in  accorchnice  witii  Article  VUl  of  the 
said  Tri'aty. 

2.  The  said  claim  Xo.  o  was  not  embraced  in  the 
schedule  of  tlie  Uritish  case,  payes  1  to  (10,  inclusive, 
as  presented  to  the  said  Tribunal  of  Arl)itration. 

3.  It  was  not  included  or  referred  to  in  Article  IX 
of  the  award  of  the  said  Tribunal  of  Arltitration. 

4.  It  was  not  endmiced  in  the  Ccmventiou  between 
the  United  States  and  Great  Britain  for  the  settlenuuit 
of  claims  presented  bv  Great  Ih'itain  a^ain.st  the 
United  States,  in  virtue  of  the  treaty  of  Fel)ruary  29, 
1892,  which  (Convention  was  ratitieil  by  the  I'resiiU'nt 
of  the  United  States,  April  20,  I89('i,  and  by  Her 
Britannic  Majesty,  Mav  14,  1896,  and  under  which  the 
Iliji'h  Connnissioners  were  named. 

376 


376 


THE    BLACK    OIAMOXD. 


f).  And  tlic  siiid  cliiiiii  No.  5,  in  lu-liiilt'  of  Groiit 
liritiiiii,  claiuiinj''  (•uniju'nsiition  iVoni  the  United 
Stiites,  did  not  a^i^<e  l)y  virtue  of  tlie  trenty  aforesaid 
or  of  tile  award  and  tindin<is  of  the  saitl  Trihunal  of 
Arbitration,  aiwl  it  is  not  an  a(Mitional  ehiini  speeified 
in  tile  lifth  parajiTaph  of  the  ))reand)h'  to  the  said  Con- 
vention, an<l  is  not  intlie  list  of  (daiiiis  intended  to  be 
referred,  aii])ende(l  to  said  ( 'onveiition,  j)ointed  (tut  as 
the  claims  intended  to  he  referred  in  Article  I  of  said 
Convention. 

'i'lie  arjiiiiiieiit  and  consideration  of  this  motion  were 
])ost|)oned  until  th"  final  arj:unient  of  all  the  claims. 
The  testimonv  was  taken  <lr  lanr  rs.sr.  Counsel  rep- 
resentinii' the  ( Jovernmeiit  of  the  United  States  an<l 
Her  Hritannic  Majesty  before  this  llioh  Commission 
communicated  each  with  their  own  flovernmeiit  and 
received  instructions  resulting  in  the  following  stipu- 
ation: 

It  is  stii»uhit<'(l  and  ajjreetl  by  counsel  for  Her  Kritaniiic 
Maje-sty  and  the  United  States,  subject  to  the  sanction  of  tlie 
("ommissioners.  that  the  claim  ininiberiHl  5,  resting  on  the 
alleged  warning  of  the  schooner  Jilark  Diamoml  in  ]<S8<»  and 
\{..  180S,  the  personal  claim  of  .lames  Gaudin,  included  in  claim  No. 
11.  iiDi)/ he  jmicvftlitl  iritli  hi/  tliv  Comiiiisnioncrs  for  the [mrpotie 
of  rcporfiiKj/acts  anil  cinirliiKious  to  our  rcnpcctire  f/ovcriimciits, 
for  their  information  seixirotely  from  other  vluimn;  provided, 
however,  tiiat  the  (juestion  of  jurisdiction  of  the  Commis- 
sioners under  the  convention  in  respect  of  said  claims  shall 
remain  undecided;  but  the  Commissioners,  in  their  discre- 
tion, may  report  their  opinion  on  that  (juestion — counsel 
intending  to  i)rejudice  in  no  way  whatever  their  respective 
governments  in  above  matters. 

K-  i'*'^^  '"'•'      The   lliji'li  Commission<'rs  sanctioned   the  stipula- 
tion and  ordere<l  it  filed. 

The  (lovernineiit  of  the  United  States  asserts  that 
the  consideration  of  this  claim  is  not  within  the  juris- 
diction of  the  Ilijih  Commissioners.  An  inspection 
of  paii'es  1  to  (10,  inclusive, of  the  British  case,  as  jire- 
sented  to  the  'i'ril)unal  of  Arbitration  at  Paris,  dis- 
closes that  no  claim  for  dama<>es  bv  reason  of  anv 


THi:    HLACK    DIAMOND. 


377 


wiiniiiiji'  <:ivcii  to  tlic  llhicl:  J)ii(iiiiiu(l  in  ISSC  was  piv- 
sciitt'd  til  tliiit  'rrihuiuil.  No  n't'LTt'iict-  is  niiidc  to  jmy 
siicli  cliiiiii  ill  till-  iipptiKlix  (if  cliiiius  tn  tlic  Coiivcu- 
tioii  l»v  wliicli  tliis  Ilijili  ( '(imiiiissioii  wiis  crciitcd; 
iiiid  this  cliiiiii  is  not  rct'ciTiMl  to  in  itiinijiTiipli  o  of  tlii' 
jin-iiiiihlt'  of  the  ( 'ouvciitioii  of  I'Vliniiin  S,  iS'.Ki,  ns 
an  adilitioiial  cliMiii  to  Ik-  suhiiiittcd  tti  tlic  i-oiisidi-ra- 
tioii  of  tilt'  Hi;;li  ( 'oinmissioiicrs. 

Tlic  l)l<t(l,-  DldiiKiiitl  referred  to  in  Annex  (', 
ai)i)ended  t<i  tlic  award  of  the  'rriliniial  of  Arhitra- 
tion  at  Paris,  as  liaviiiji'  hccii  seized  on  tiie  lltli  of 
.Inlv.  1S)S;»,  .'5;")  iniles  fnnn  the  nearest  land,  l»y  the 
United  States  re\entie  cutter  Ji'iisli,  was  iirescntcd  to 
this  Ilifi-h  ('oiiiniissioii  as  ("laini  No.  1").  and  the  tes- 
tinionv  taken  in  connection  with  that  (daiiu  estalilishes 
that  the  niacli-  />/>/;»'<//'/ was  seized  the  1  Ifli  thii/ofJiili/, 
/.S'.S'.V,  l»v  the  revenue  cutter  Jtirlidnl  Hush. 

The  claim  of  the  Jllacl,-  Diowoiid  for  the  year  1SS6 
is  of  a  ditiereiit  nature  from  the  claims  submitted  hy 
the  Convention  to  this  lliyh  Commission. 

The  testimony  clearly  estal)lishes  that  no  warnin};- 
of  the  nature  found  l)y  the  Triliunal  of  Arl.  ration 
convened  at  Paris,  to  have  l)een  ^iveii  the  vessels 
named  in  the  schedule  apiiended  to  the  award,  was 
o'iveii  to  the  llloci:  IHitiiiiiiid  in  the  year  is.sd,  and  the 
I'nited  States  contend  that  no  warnin<i'  of  any  nature, 
as  conclusively  appears  by  the  evidence,  was  <>iven 
bv  auvone  clothed  with  the  authority  of  the  Gov- 
ernment of  the  riiited  States. 

The  letter  set  out  in  that  portion  of  the  Argument' 
tiled  on  l»ehalf  tif  Creat  liritain.  wherein  this  claim 
is  spcciticallx- treated,  is  not  found  in  the  Uecord,  and 
the  comdiisiim  drawn  that  "similar  letters  were  writ- 
ten to  other  collectors  of  customs"  is  lait  based  upon 
anv  testimonv  or  fact  found  in  the  Record. 

An  examination,  however,  of  this  communication 
from  the  Treasury  Deiiartment  of  the  rniteil  States 
to  the  collector  of  customs  at  San  Francisco  discloses 
II  f! 48 


i']L.'.    Oil    lie- 
hnir  of  (i. 

H.,  p.  ins, 

line  13. 


K..  i7:.ti, 
".1. 


K.  1757, 

IS. 


378  THK    IILACK    DIAMOND. 

tliiit  the  iiistriH'tious  tlu'ic  <iivt'M  rcliiti'tl  fiitircly  to 
vessels  ('((iiti'miiliitiiiji'  n  voyiij^v  troiii  tlic  port  ot"  Sun 
Friiiu'isco,  iiixl  iiiiitlc  iii>  n't'civiu'i'  wliiitfver  to  wani- 
iiiys  iK'iii"-  mvcn  l»v  tlu'  culliM'tor  fiddn'sst'd  in  tlint 
coiiiinuniciitioii  to  tlic  ships  of  .iiiy  othi-r  nation. 

The  nidrl,-  DUiDinuil  ciitiTcd  H('rin<j'  Sea  about  thv 
1st  of  .lidy,  1SH(),  and  proceeded  to  the  port  of  I'n- 

lin.alaska,  wlu'iv  the  captain  says  c«'rtain  papers  were 
served  upon  him  l»y  th«'  collector  of  custtiins,  and  lie 
was  advised  to  leave  Meriuj;'  Sea  ri^jlit  away. 

He  claimed  to  have  lost  the  papers,  hut  states:  *''riie 

liii(-|'itpers  represented  that  if  the  vessel  was  caujiht  in 
Herin^i' Sea  killinj:- fur  seals  shewoidd  he  confiscated." 

(J.  Wiis  there  any  verbal  notice.' 

A.  Yes;  1  was  strontfly  ^'/I'Mp*/ by  the  collector  of  eiistonis 
at  rnahiska  to  go  (»iit  of  l»eriiig  Sea,  or  I  would  be  sure  to 
be  seized. 

(^  What  did  yoii  do  then  *. 

A.  /  irviif  Dili  into  Ihv  nea  ami  liifi<ui  Ktiiliny. 

(j.  How  lon^  did  you  remain  in  the  .sea? 

A.  I  reuniined  until  the  beginning  of  August. 

(^  What  day '! 

A.  I  do  not  remember  what  day.  It  was  somewhere 
between  the  1st  and  the  M  and  4th. 

''""  The  captain  then  states  that  upon  the  4th  day  of 
Au<iiist  he  started  on  his  return  vova^ic  to  N'ictoria, 
ahandoninji'  the  further  ])rosecutit»n  of  his  hunting 
trip. 

(i.  Why  did  you  start  for  home? 
A.  I  was  afraid  of  seizure. 

<J.  Had  you  no  other  reason  to  leave  the  Ik-ring  Sea  ex- 
cept that  of  being  afraid  of  being  seized? 
A.  No,  sir;  I  bad  no  other  reason. 

1<.^_1774,  liue      'l^lie  Jil„rl,-  DtdiiKHtd  left  the  lierinji'  Sea  about  the 
r2th  or  Uth  of  Au;>ust. 
line      (^"jiptain    I'axton    was   «|uestioned    relative   to    the 
proposed  lenoth  of  his  voya;i'e  and  said: 

(}.  For  what  length  of  time  did  you  outfit  ? 
A.  Well,  I  expected    to  get   back  in  the  begiiuiing  of 
September. 


\i..  1757 
(W. 


K..  1757, 
51. 


% 


Tin;    liLA(  K    IHAMOMi. 


37y 


^}.  Voii  fxpectetl  to  U'livc  tlio  Bering  Sea  nbimt  the  end  of 
AiiKUf't? 
A.  Yt's,  sir. 

Tlif  iiiiitc,  Owen  'riK.iiiiis,  wiis  ciiUcil  ns  n   witness"-,',,,'"""'""" 
on  Itt'liiilf  ot'  tilt' fliiiMiiint«*,  ^i\in;i'  no  cviilfnct-  of  im- 
jKirtiMU'c  rt'liitinj:'  to  tlu;  occurrences  iit  Iniiliiskii,  jnnl 
stntinji'.  on  cross-cxMniiiiition,  tliiit   tlie  cii|itiiin  wmildH.;  i77i,  linr 
lie  hetter  informed  Jis  to  wliiit  nccurred  lit  liiidiiskii 
tliiin  lie. 

Tliis  witness  testilied  reliitive  to  tlie  time  tluit  tlie 
I'tliiil:  IHdiiioiiil  left  tlie  sea: 

(}.  Are  you  positive  yon  went  (uit  on  one  oftliose  days,  ori;..  I77i,  line 
near  those  days?  '  ""' 

A.  Somewhere  near  tlie  iL'th  of  Au^iust  or  the    14th  of 
AnjiMst. 

(J>.  Yon  eonhl  not  be  niistiikeii  about  tliat :' 

A.  No.  sir;  it  must  be  sdinewheve  between  tlie  lotli  and 
loth,  anyway. 

().  And  no  matter  what  the  ('aptain  says  about  that,  you 
are  positive  that  that  is  the  time  yon  left  ? 

A.   Yes,  sir. 

The  testiinonv  shows  that  althoiio'h  this  so-called 
wai'iiinji'  was  "iveii  the  captain  on  the  1st  day  of  .lid\  , 
t]\{- llldcl,-  DidiiKinil  rtnU'u\\U'i\  on  her  voyaji'c  until  the 
4tli  of  Auo-nst,  when  she  commenced  to  work  toward '^-j'''"' '""^^ 
one  of  the  passes,  and  tinally  left  the  sea  l)etween  tlu- 
loth  and  loth  of  that  month,  takinj;-  in  the  meantime 
between  TOO  and  ^iOO  seal  skins. 

The  statement  is  made  in  the  British  Afoiiment: 

in  the  case  of  the  lilark  IHamoinl.  No.  ".,  and  the  'W/''''''*'^',*f,',j;||5'"'<;;j. 
J(/«H/.v,  the  title  was  in  a  Hriti.sh  subject,  but  the  vessels  were    (-'I'l*.,,.  17^ 
operated  for  the  benelit  of  a  trading  tirin  at  Victoria,  com-     lim.  if. 
posed  of  the  owner  and  one  Alexander  Frank,  who  was  a 
native  born  citizen  of  the  I'nited  States. 

The  Ixecord   discloses  that  Alexander   Frank   and^f'- ^■";  I"- 
.lacol)  ( J titnian,  deceased,  were  e(|Ual  partners,  wincli,    No.s.r.xiis. 
taken   with   the  achnission  made  on  liehalf  of  (ireat    •'-"'■ 
Hfitain,  conclusively  proves  that  .\le\aiider  Frank  is 
a  half  owner  of  this  claim. 

The  stipidation   recited   agrees  that  the  facts  and 


i« 


(ii' 


I 

ill 


3  so 


THK    ULAt'K    UlAMuXn. 


conclusiiHis  <)t'  flic  (.'iiiiiiiiissioiuTs  slinll  l)c  ('01111111111!- 
ciifcd  to  tlu'ir  rfs|i('ctivi'  ( Jovcrmiit'iits.  Tlie  I'liitcfl 
Stiitcs  coiitciKl  tlifit  tilt'  tt'stiuioiiy  ('oiicliisivf.'l  •  cstnh- 
lislu's  tliiit  tlic  ;iroiiii(ls  ot'  tlic  motion  tilt'd  Ijct'orc  this 
Iliji'li  Conimissioii  iin-  siiHiciciit  to  cxcIikIc  tlic  ciiiiiii 
tVoiii  tlu'  t-oiisiilcriitioii  of  tlu-  ( 'oniiiiissioiHTs,  tiiid 
tiiiit  flic  filets  iis  t'oiiiMJ  from  the  testimony  are  ns 
follows: 

Tliiit  flit'  llliirl;  l>i(iiiiiinil  \\i\H  imt  "seizeil  or  wiinied 
ill  1S8(!  Iiy  11  I'liited  Stnfes  reveime  flitter,"  iis  foiiinl 
with  reference  to  the  vessels  iiiimed  ill  Annex  C. 
ii|(|iended  to  the  iiwjird  of  the  'rriltniDil  of  Arhifni- 
tioii  convened  iit  I'iiris; 

riint  no  Wiiniin^i'  wiis  <iiveii  this  vessel  liv  any  jter- 
son  actin^i'  with  authority  011  liehalf  of  the  United 
States; 

That  the  vesstd  remainetl  in  Meriiiy  Sea  until  the 
Idfli  or  l')fli  of  Au^i'iist,  when  she  saih-d  with  her 
cariio  of  seal  skins  for  \'it'toria; 

'That  hail  the  vessel  not  left  Merin^'  Sea  she  would 
have  terniinafeil  her  voyaj;e  hetween  the  20tli  and 
2")th  of  Au^i'iist: 

That  Alexander  Frank,  an  American  citizen  resid- 
iny  in  tlii^  city  of  San  Francisco,  in  the  ['iiited  States 
of  America,  was  a  half-owner  of  the  venture  of  the 
Illiicli-  DiiiDiiiiitl  in  the  year  1SS(!,  and  is  a  half  owner 
of  tilt)  allt'<>eil  chiiiii; 

That  no  instruction  or  comimuiicafion  was  ever 
sent  l»y  the  Government  of  the  rnifed  States,  or  any 
jierson  re|»resentiiij>'  its  authority,  to  the  deputy  col- 
lector of  customs  at  the  port  ot  Fnalaska,  tlirectiii<>' 
him  to  warn  or  seize  any  vessel  liuiitin<i'  seals  in  the 
waters  of  the  lieriiiji'  Sea: 

That  the  instructions  issued  by  the  Fnited  States 
Treasury  Department  to  the  conimanders  of  revenue 
cutters  of  the  riiited  States,  in  18S<>,wero  never  com- 


THK    IlLACK    UIA.MONI). 


3S1 


iiiiiiiicattid  to  tlie  ciiiitiiin  or  iiiiy  olHccr  of  the  lihiLk 
Didiiitiiid  ill  till'  year  I.SSH; 

That  tlicH!  is  no  tt'stiiiioiiv  in  llic  hV-rord  upon 
wliicli  to  liastf  till'  I'laini  "  Li';;i,l  and  otla-r  I'XpciiHi's, 
s-ioO." 

That  no  ainoiint  should  he  awarded  tlii'  owners 
of  till'  Bldvl;  JUitiiioiid  for  ilainayi's  sulfi'iod  in  thu 
year  188G. 


I 


i<l 


i'l ! 


THE  W,  P.  SAYWARD. 


Claim   No.  (I 


('  I  a  i  III  8  i  :i 
It  r  i  t  i  s  li 
cast",  Am. 
Kt'p.,    vol. 


The  ir.  /'.  x 


iijlirdit 


n'iiistcr. 


Th 


-I  I 


WilS   il    ScIlOdlUT   ot    ">1>.79   tolls 


f  I. 


iM.Mt.        ,,^.    'p, 


ic  vessel  heiii^  ((wneu  jit   the  time  ot   her  seizun 


Id 


lUiis  II.  ("oojier,  !i  civil   citizen   ot"  the  I'liited 


States,  miy  liiil»ility  on  the  |iiirt  ot"  the  ITiiited  State! 
to  this  claiiiiaiit   is  tleiiieij. 

Ill    18S7,  after  sealiiij:- alonif  the  coast,  the  vessel, 

K..  KKC,  liiu' with  ei>:ht  canoes,  entered  lieriiifi'  Sea  altotit  the  1st 
ot  ,luly.  ( )n  the  Htli.  alxmt  n(»oii,  she  was  seized  hv 
the  I'liited  States  reveinie  steamer  Kiif^li  for  violating' 
tile  mmiiciiial  statutes  of  the  I'liiteil  States.  Under 
the  direction  of  the  I'nited  States  ollicer  makinji-  the 
seizure,  the  schooner  was  sent  to  Sitka  for  trial,  where 

App.  It.  i-'i.sheiiiTived-_Mst  did  v.  On  the  l.'Uli  Sei.temher.  1.SS7, 
tile  vessel,  her  tackle,  apjiarel,  noats,  carj;o,  and  tiir- 

App.  H,  i:;(i,  "'^"''^'    \^t''"t'    lil»ele<l,  and  on  the    IDth  Septemher  a 
liiifi'd.       decree  of  condemnation,  forfeiture,  and  sale  was  en- 
tered aj:aiiist   her.     Siil)se(|iiently  the  schooner,   her 


17. 


w.,  i(«tr.,  liii 


\i..  lOHT.  line 
:t. 


A  pp.  H.  i;i!i,  • 


liiii'  III. 


oiitlit,  and  carad  were  honied  l)y   Thoinas  11.  ("ooper, 
IS  owner,  and  an  appeal  was  taken  l»v  him  to  the  Sii- 


|i 


reine  ( "oiirt  ot' the  I'liited  State: 


diicl 


I  appeal  wa 


K.,lli7.litMs 
:ili  anil 


perfectecl,  and  the  order  «iraiitinii' it  was  entered  ,\pril 
27,  18HS.     At  the  time  of  the  j:rantiii.i:'  of  this  order 


tl 


le  vessel  was  m  !^» 


ittle    Washiiiiitoii  Territorv ,  and 
s  seized  on 


Hi.    An 


I' 


lll.linnL'.'i. 


ill  .May,  ISJSS  was  delivereil,  with  the  skin 
hoard,  to  the  owner. 

In  the  schedule  (tf  this  claim,  iiicliide<|  in  the  .\r;in- 
ineiit  on  hehalf  of  (ireat  liritain,  appears  an  item   tor 
:tsL! 


THE    W.    P.    SAVWARD. 


383 


"4sr)  skins  on  iMiiinl  at  tinu'  itt"  seizure,  at  ><(I.6(>;  total, 
>^3,1  ")■_*. oO."  riu'sc  skins  irtcrrcMl  to  aiv  tlu'  same  as 
those  rc'covertMl  l)y  tlic  owner  imder  tlie  Ixiiid  jiiven. 
Captain  Warren,  wlio  had  tlie  nianajienient  of  tliese 
vessels  tor  C'oi>|)ei",  was  asked: 

().  Were  the  seal  skins  iiicliuled  in  the  bond  yon  jjave  for  i{.,  1117,  lino 
the  Sai/inird  !  57. 

A.  Ves, 

(I.  I  low  many? 
A.  Abont  440. 

(i).  The  bond  was  jj^iveii  for  tlie  vessel  and  the  sliiua? 
A.  Yes. 

On  the  l!»th  April,  1S8S,  the  followinj--  order  dis- 
char^inji' the  schooner,  IT.  I'.  S(iif/r(inl,\h>n\  custody 
was  made,  directed  to  the  marshal  of  the   District  ofApp.  ».,  un. 
Alaska: 

yiu:  The  iibovenanied  vessel  and  all  her  tackle,  ajiparel, 
furnitnre.  arms  and  ammunition,  and  (^ar^fo,  consisting-  of 
17'.)  fur  srtil  skinx  that  liave  been  reeeivetl  by  you  in  this  port, 
haviii}*'  been  bonded  and  ordered  released  by  the  .jud{i;e  of 
the  above  court,  you  will  theretore  diseliar;;'e  the  vessel,  her 
tackle,  apj)arel,  furniture,  arms,  ammunition,  and  cargo,  con- 
sistiufj  of  47!)  fur  seal  skins,  so  received  by  you,  and  deliver 
the  same  to  .1.  I).  Warren. 

I  hereby  certify  thai  the  tbrejioing  is  a  true  and  correct 
copy  of  the  order  of  the  court  in  the  case  of  tht^  Tnited 
States  r.  Sdiooner  W.  I'.  Stii/iniril,  entered  in  the  above 
entitled  cause. 

Attest  mv  hand  and  seal  of  said  district  court  this  l!>th 
day  of  April,  A.  I).  ISSS. 

11.    K.    llAVDON, 
IHstrirl  0/  Alashi. 

1  liereby  certify  and  return  tliat  the  schooner  W.  I'.  Nai/- 
ini'il  was  delivered  to  ,1.  1>.  Warren  in  accordance  with  this 
o)'.ler  of  the  court. 

I'lAitTON  Atkins, 

Ciiited  iStati'x  Marnlial. 

In  view  of  the  fact  that  these  skins  were  returned 
to  the  owiHsr,  tlu'  United  States  consider  the  claim 


for  th 


leir  value  to  have  heen  erroneously  nu 


•hided 


\\\ 


the  Ar^iunient  on  l»ehalf  of  (Jreat  Mritain,  the  evidence 


3.S4 


THE    W.    P.    8AVWAHD. 


'  .ivcr  tour-liftlis  of 

•  of  loss  of  iiisur- 

iti(»ii  of  till'  |)olifii;s 


beiiiji'  coiicliisive,  for  in  no  other  li<:lit  are  the  Tnitefl 
States  willinji'  to  v'u'w  the  ehrini  made.  It  is  needless 
to  add  tiiat  it  could  not  be  allowed  in  any  event. 
'i'lie  item  termed  in  the  schedule,  "  Insurance 
Anp.  H,  ii!».  N4,S().;t6,"  is  hased  ni)on  a  statement  of  "itreniiunis 
paid  |)er  Sai/irdnl,  Aiiiki  lircl;.  Dnljiliin,  and  (irocv" 
appearin^i'  as  Kxliihit  No.  (!4  (Cl.  B.).  claims  No.  (I,  7, 
!>,  and  10.  This  statement  shows  that  in  the  case  of 
the  ir.  /'.  Sdjiininl,  the  owner  pai<l  for  insurance  from 
ahout  Jamiarv  1,  1SS7,  up  to  Auj-nst  If),  1SS7,  tlis, 
Kis.  7d.  The  vessel  was  sei' ed  on  the  Hth  day  of 
July,  and  had  received  tli<  oeiu  ''r  > 
the  prenuums  paid,  leavin;  I'iii, 
ance  after  .seizure  until  the  .  m'ici  li; 
of  N«»l.,f)0. 

The  United  States  (daim  that  the  item  should  he 
reduced  to  this  sum. 

An  iti'in  is  iniduded  in  the  schedule  for  "mate's 
trip  to  Victoria,  >^1(K)."  In  tlie  Arjiument  on  l)ehalf 
of  (Jreat  ihitain  the  followiiifj;-  statement  appears  in 
reference  to  this  claim: 

Ur.AiK.,  Ill,      While  \viiitiii<>  for  trial  the  mate  jjot  leave  from  the  court 
line  1.         t„  g,,  (,,  X'ictoiia  on  hi.s  parole  to  return  lor  trial.    This  trip 
cost  the  mate  810(». 

The  marjz'inal  reference  fi'iveii  for  this  statement 
dis(doses  the  followin<i'  in  tlic  examinafion  of  A.  D. 
Lain^',  the  mate  referred  to: 

R.^,  UHt8.  line  (^.  YoH  say  that  you  came  away  tor  good  i'-  <  'itober.  1  >iil 
you  ;;o  away  before  that? 

A.  I  did:  I  came  away  in  August. 

<i>.  Il(»\v  long  did  you  stay  awav  ll>en  '. 

A.  I  arrived  here  on  Saturday. and  '  was  on  i  .'  way  hack 
on  Monday. 

(i).  Why  did  you  go  back? 

A.  To  stand  trial. 

(i).  Why  did  you  come  away? 

A.  1  went  to  .ludge  Dawson  and  asked  him  for  ptM mission 
to  fill  liiDiif  mill  sir  III  If  iHopli^  but  he  said  there  was  no  troul)le 
as  long  as  I  gave  my  word  of  honor  to  go  back  ami  stand 


4. 


THE    \V.    1'.    SAYWAKi'. 


385 


Lober.     Did 


II. 


trial,  and  I   did,  and  went  back   and  stood  trial  wiien  it 
come  on. 

It  is  iiijpart'iit  from  tlu'  tcstiiuoiiy  tli.it  iRMflifv  tliis 
luau  nor  tlu'  owner  coiihl  r.'covcr  for  tlu-  expense  of 
a  visit  to  his  family  at  Vietoria. 

The  item  in  the  schednle  entitled  "Belyea's 
cliarg-es"  is  nnwarrantei',  as  there  is  no  evidence 
before  the  Connnission  that  such  an  anionnt  has  ever 
been  })aid  by  the  owner  of  the  vessel  to  Helvea,  or 
that  he  has  become  liable  for  such  an  amonnt,  or 
that  the  services  rendered  were  of  such  a  nature  as 
to  warrant  such  a  char<.i'e;  an<l,  furthermore,  whatever 
services  were  performed  were  in  connection  with  the 
preparation  of  this  claim  for  presentation  to  the 
Ottawa  (iovermnent. 

The   item   for   "owner's  expen.ses,   si'Od,"   has   no  i?-.  niii,  lii 
foundation   in   law  or  in  fact  upon  which  an  award 
coidd  be  made. 

An  item  appisu's  in  the  Ar;.iument  on  l)elialf  of  (ireat 
Britain  entitled,  "Expenses  incurred  in  hondins" 'SV///- 
widil,  etc.,  .-((iif,  >il,0O(),"  and  an  examination  of  the 
l\ecord,and  especially  of  the  pay'es  cited  in  the  British 
Aro'ument  in  connection  with  this  claim,  fails  to  dis- 
close any  evidence  whatever  as  to  the  expenses  which 
were  incurred  by  Thomas  11.  Cooper,  tlie  owner,  or 
of  his  attorney  or  anient  in  pmcurinii'  bonds,  and 
under  any  circmnstances  the  ownei-  liaviiii;'  bonded 
the  vessel  for  the  purpose  of  taking'  an  appeal  to  tlu' 
Supreme  Court  of  the  United  States  there  is  no  rule 
of  law  or  eipiity  which  entitles  him  to  recover  an\- 
expense  incurred  in  coniUH-tion  with  [jerfcctinji'  such 
a|)))eal.  It  is  also  apparent  that  this  ex])euse,  if  any, 
was  dependent  chieHy  upon  the  iinancial  standin;^'  of 
the  owner.  The  United  States  claim  that  this  item 
could  not  be  allowed  in  any  event. 

The  sum  of  "sw/,  >>2,(>(>0,"  is  clainu'fl  in  the  oppos- 
inj4'  Arfi'ument  for  damages  t(»  the  Sai/ininl.     Upon 
B  s 49 


I 


l!  T 


386 


THE    W.    I'.    SAYWAKD. 


!■ 


K.,  1147, 
11'. 


K.,  1104,  liu( 
(W. 


t'.iis  sul)j('ct  the  cximiiiiatioii  of  Captuiu  WaiTeii  <lis- 
(•l(»s('s : 

(i».  What  condition  was  she  [  IV.  /*.  ttaywanl]  in  ? 

A.  Well,  the  vessel  herself  was  not  in  bad  condition;  a 
lot  of  the  fjear  and  stutt'  on  her  was  missing,  such  as  the 
kedge  an(;lior  and  some  small  sails.  L  suppose  they  had 
been  stolen,  but  I  do  not  know. 

(^.  What  was  the  effect,  if  any,  upon  the  vessel  between 
the  time  she  was  seized,  and  the  time  you  got  her  back? 

A.  Tlu'ie  wa.'  not  more  than  there  W(mld  naturally  be  for 
that  time,  lying  without  any  care. 

().  Only  the  ift'ect  of  the  lying-up  of  the  ship  and  the 
absence  of  care :' 

A.  Yes. 

(.}.  Were  repairs  i)ut  on  her  after  she  got  back? 

A.  I  <lo  not  just  remcmhir  irhrther  I  repaired  her  or  iioi,  I 
knoir  that  J  houjiht  some  gear  ond  ntufffor  lier. 

Ill  tlie  (lejiositioii  of  Andrew  1).  Laiiij;',  iimte  of  the 
vessel,  the  fullowiiijj-  testimony  \vasj>iveu: 

.     i).  When  did  you  get  the  vessel  back  from  Sitka  ? 

A.  She  came  back  here,  1  think,  in  May,  1888.  1  was 
not  here  in  1888.  I  was  up  in  Uering  Sea  in  the  schooner 
Fannirifi: 

Q.  When  did  you  next  see  her? 

A.  In  the  fall  of  1.S88,  when  1  arrived  home. 

Q.  Had  ani/tliinn  been  done  on  the  hnU  after  she  arrircd 
hereof 

A.  ^'ot  to  my  knowkdije;  tliei/  m'njht  hare  eaiilked  her  deeks 
and  (/ireii  her  a  coat  of  paint. 

No  otlier  evidence  is  proihiced  than  the  statements 
of  these  two  witnes.ses  to  estahhsh  the  (himajies  whieh 
the  Sdi/tranl  sustained  throiiiih  <h'tention,  nor  is  tliere 
evi<h'ii('e  to  show  that  any  sum  was  expeiKh'd  upon 
tlie  vessel  o\  er  and  altove  the  amount  usually  jtaid  for 
wear  and  tear.  The  I'nited  States  therefore  claim 
that  the  charii'e  of  !*^L',(I(II>  is  not  only  excessive,  hut 
that  thei'e  was  ->o  unusual  expenditure  and  no  sum 
could  he  allowed  under  this  item  in  any  event. 

As  to  the  items  entitled,  lespectively,  "tla^i',  >>1'_*," 
"heddin<i',  84(>,"  and  "artitdes  (Ui  hoard  ship,  items 
impossihie  to  enumerate  (lutt  returned),  "^^Od,"  there 


THE   W.    P.    SAVWARD. 


387 


is  no  evidence  of  jiny  kind  hci'orc  the  ( 'oiiiiiiission  upon 
wliicli  ;in  iiwiinl  could  lie  iiiiidt-. 

Tilt'  (daiiii  niiuU'  for  s'.lOO  "loss  to  owner  l)v  rciison 
of  detention  in  1887  and  18SS,  when,  if  in  tlie  owner's 
))ossession,  slie  wonld  have  l>een  eoastinii-  Novendier, 
Deeendier,  and  Jiinnarv,"  is  unwarranted.  There  is 
no  evidence  Ix'fon-  the  Connnission  that  this  vess(d 
had  ever  been  en;ia<>-ed  in  the  eoastinj.>-  trade  other 
than  was  usual  in  connection  with  a  sealing'  trip  on 
the  c(»ast  in  the  sprin<''  months.  The  niar<;inal  refer- 
ences whicli  appear  in  connection  with  this  claim  do 
not  hear  out  the  statement  ma(h'  in  the  Ar<i'ument  on  "''■.Arg.,  iii, 
behalf  of  (ireatHritain.  This  schooner  was  not  fitted  ^"'"  ^'^^ 
with  steam,  and  of  the  so-called  "Cooper  vessels"  onlv 
those  which  had  steam  power  a])pear  by  the  Kecord 
to  have  been  nsed  for  ('(tastinj^-  purposes. 

Theclaimsinadefor"balanceofcatchforthe  remain- 
der of  the  season"  and  "estimated  coast  catch  for  1888, 
less  exi)enses,"  siS.JtSn.oO  and  n-_>,4  13,  respectively, 
beinp-  for  prospective  profits,  can  not  be  allowed,  and 
have  received  a  full  discussion  at  another  place  in  this  A"*"-  loi. 
Ar^nnnent. 

The  individual  claims  of  Captain  Ferev  and  A.  1 ).  Ante,  3io. 
Lain<>- are  considered  in  this  arg-uuient  under  the  title 
of  "Personal  (.'laiuis  of  Captains  and  Mates." 

The  only  damaji'e,  which  the  owner  of  the  W.  /'. 
Sdjiivanl  sustained,  by  reason  of  her  seizure,  was 
thronj;-h  her  detention  from  the  date  of  such  .seizure 
to  the  time  when  she  was  surrendered  to  the  aii'ent 
of  her  owner;  the  measure  of  dama<i'es  l)einf>-  the 
duinurra<ie  or  charter  vahu>  of  the  vessel  at  the  juirt 
of  \'ictoria  tor  that  period. 


»i. 


M 


■ilMl 


t.Ji.i, 


i  ' 


THE  ANNA  BECK. 

( 'l,AIM    No.    7. 

App.^  H.    p.      '^pii^.  Jt/iid  lifck  Wits  !i  scliuoiicr  of  o(>..'55  rcoistort'd 
ciiiTiiis  ill  tons.     TIk'    vi'sst'I   Itt'iuj:'   owned,  at  tlio  time  of  her 

f'aso  * 'viiN'-''''''"^''  ''y  '  1""""!^  "•  ('ooper,  a  civil  citizen  of  the 
Kcp..  vol.  United  Stati'.'<.  any  haljilityoii  the  ]iart  of  the  l'nite<l 
i,p.  iti;f.     ^x-Mi's  to  this  chiiinant   >  denied. 

K.,  1040.  liim      III  18s7,  after  a  seahiiy  vovaye  in  the  siu'iny,  she 

liiiotio;  i;.;  tran.s.sliipped  lier  skins  on  the  we.st  coast  of  \'anc»m- 

lou.  liiKver  Ishuid,  and  sailed  for  Meriny  Sea,  carrviny  ten 

iineoi.     'canoes  and  one  hnnliii<i'  l)oat,  with  twenty  Indians 

Mild  six  white    men.     She  (entered  the  sea  .June  2S, 

ij..i(m,  Hm  and  on  the  iJOth  lost  a  canoe.     On  .hilv  2  the  vessel, 

ll;K.,lii41,  ,        .  ,  ,   .,.,..  ,     ,  .  '•11         tl 

line  t;i  :  liavniji'  on  hoard  .).{()  .seal  sknis,  was  seized  h\  tlie 
^'l'';."JI  lJnite(l  States  revenue  steamer  Unsli,  for  violation  of 

l.il,  line. ill.    ,  .    .        1  ,.    1        IT     .       1    ',  oi 

tlie  mnnici]ial  statutes  of  the  United  States.  Slie  was 
taken  to  Sitka,  and,  with  her  outtit  and  cargo,  was 
lil»elcd  by  the  riiited  Stati-s  attoriiev  for  the  Pi.strict 
of  Alaska,  an  a|t|)eaiaiice  Itein;:'  entered  for  the  vessel 
on  behalf  of  her  master  and  owner. 

App.   M.    p.      On  ()ct()l)er   11,  ISST,  a  decree  of  condemnation, 

iL'i  I'd.        forfeittn'e,  and  sale  was  entered  a<>ainst  the  schooner, 

her  outtit  and  caryo.     Snbse(|nently  the  vessel,  a  por- 

rioii  of  her  outlit,  and  the  si-al  skins  .seized  were  sold 

under  the  decree  l>y  the  I'nited  States  marshal. 

By  reasKii  of  this  seizure  the  Aiiiiit   Ilr( I:  l)ecame 
totally  lost  to  her  owner. 

i!i.  Ar-..  p.      'l"he  scheilule  attached  to  that  portion  of  the  Aryu- 

i !  I.  lint'K.'i.  ,  I     1     ii-     I'  /  .  i>    •      •  I      •  1  I    • 

nieiit  on  >enali  of  dreat  l>ritain  relative  to  tlie  claim 
of  this  vessel  cuiitaiiis  an  item  for  "li.st  of  stores  on 

38S 


;((.: 

;|:' 


THE   ANNA    HECK.  389 

bojtrd  the  sclioiHier  Aiiihi  licck  wlu'ii  scizt'il,  so  tar  as 
the  fiiptaiii  can  rccoUcct."  The  marjiiiial  reterence 
t(t  this  item  is  "H.,  l(t61-(;2."  Tlie  part  of  the  Keconl 
cited  contains  a  hst  by  ( )lsen,  the  master,  ot"  stores  on 
board  of  the  schooner  at  the  time  of  seizure.  Tlie 
total  vahie  j^iveu  by  tlie  witness  of  these  articles  is 
8871.30.     The  item'  in  the  Ar^^ument  is  s'leo.ao. 

An  examination  of  this  list  <i'iven  by  the  captain 
discloses  that  it  c<mtaina  a  boat,  a  stove,  and  water 
tanks,  which  amount, accordinj^- to  the  valuation  j^iven, 
to  !Sl;>(),  leavin<>-  a  l)alance  of  >^(;Si.;5(l.  Previous  to 
the  part  of  the  Record  cited,  the  followinji'  aj)pears  in 
the  examination  of  ( )lsen  : 

<J.  As  to  prices,  have  you  a  knowledge  persouuUy  as  to  K.,_i(i(ji,  line 
the  value  of  such  articles  at  the  time?  •^•^■ 

A.  1  had  of  a  few  things,  but  not  of  the  whole  list.  1  had 
a  knowledg<M)f  about  one-tliird  of  the  jmces  before  I  rcveind 
a  list  to  the  effect  that  that  .should  be  the  prieen. 

().  Name  the  articles  that  you  know  the  prices  of  ? 

A.  Boat,  boat  compasses,  tubular  lanterns  and  lantern 
globes,  liah  lines,  salt,  pilot  bread,  and  rice;  that  is  all. 

It  is  claimed,  therefore,  in  view  of  this  statenu-nt, 
that  the  valuation  upon  any  of  the  articles  included 
in  the  list,  other  than  tiiose  referred  to  l)y  the  witness 
in  the  statement  ^'iven,  are  not  evidence  of  such  vain- l*v.,V'  ''"® 
ation,  and  that  in  so  far  as  dames  1).  Warren,  the 
a<i'ent  of  the  owner,  disa<>i'ees  with  ( )lsen  in  the 
anu>unt  of  .stores  and  their  value,  of  which  Olsen  had 
personal  knowledjie,  the  statement  of  the  latter  nmst 
be  accepteil  as  the  l)etter  evidence. 

The   item   entitled  "shtp  chest,  >^9r)."  rests  on  the  K.-.n^i- '''"^ 
statement   of    Captain   Warren,    whose    examination 
shows  that  Ik-  was  ij^-norant  of  the  anutunt  of  such 
property  seized.      ^Varren  states  that  there  were  four '*v,^'/^'' ^""^ 
water  tanks, and  that  "some  of  them  were  worth  "^'2'}."  n.,  ioi!2,  line 
Olsen  -i'ives  in  his  list  three  water  tanks.     A  claim  is    •■ 
made  in  the  Arj^ument  for  "four  tanks,  ^^Kld."' 

Claims  appear  in  the  schedide  f(tr  "four  shotu-inis, 
81<!0,'"  and    "two   ritles,    s4r>."      Captain    Olsen,   in 


390 


THE    ANNA    MECK. 


t      ■ 


II  '* 


B.,  1043, 
34. 


liur 


Apii.  U, 
line  -M. 


11-2, 


App.  Jl. 

1" 

"1, 

Hue  1'2 

App.   U, 

r 

■X, 

line  .>l 

R.  lOtil, 
47. 

App.  B, 
line  L'3, 


line 


119, 


ret'criMici'    to    tlu'    anii.s  on   hoanl    the    Ai/im    l>f(h\ 
ti'stiricil  ji.><  follows: 

Q.  What  was  done  with  tlie  auiiuuiiition  and  arms  of  the 
Anno  I  lick  after  the  seizure? 

A.  Tht>  aniuiunition  was  left  on  board  in  the  store  locker, 
and  the  g\u\a  were  taken  by  the  Indians  and  white  hunters, 
When  our  Indians  left  the  Anna  lUrk  in  I'nalaska  they  hid 
the  guns  in  their  blankets  in  a  certain  way  that  nobody  saw 
them. 

ii.  These  were  the  eleveu  shotguns  belonging  to  the  ship! 

A.  Yes;  the  Indians  took  them  fromthe.buif/  lUvk  onboard 
the  Clitillinur  at  the  time  we  left  Tualaska.    They  hid  them. 

<i).  Do  you  know  what  became  of  the  guns? 

A.  Weil,  they  were  partly  lost.  I  think  there  may  be 
thiee  or  four  returned  to  the  station  of  Cai)tain  Warren. 
Tliey  went  to  Victoria  with  tlie  Indians,  but  they  arrived  in 
Sitka.  Some  were  lost  on  the  way  down,  because  the  In- 
dians wi'ut  home  in  three  canoes  from  Sitka. 

On  Ajiril  111.  ISSS,  the  riiitt'd  States  luarslial  sold 
tlu!  .'}.'{(!  .seal  .skins  seizetl,  and  snl»se(|nentlv,  flir  /i.icil 
inintiKiiitiiiii  mill  Jiff  riiiiiinissr.s,  which  sales  were  eon- 
tinned  hy  onh'r  of  the  United  States  district  court. 
In  the  cases  of  the  other  vessels  in  1SS7,  the  arms, 
which  were  .seized,  condemned,  and  sold,  are  men- 
tione<l  in  the  order  confinninji' the  .sales  i»v  the  marshal. 

It  is  therefore  claimed  that  there  is  no  evidence 
that  the  firearms  belonuinj;'  to  the  owm-r  or  hnnters 
Avere  ever  actually  .-seized  l»y  the  United  States. 

The  item  for  sealiiiii'  hoat,  cookinji'  ran;:'e,  and  fla}"' 
are  included  in  the  list  jiiveii  by  Captain  ( )lsen. 

The  item  for  "premium  of  in.surance  paid,  S.57-J.2S," 
refers  to  Kxhihit  N'o.  (;4  ((}.  H.),  chums  Xos.  C,  7,  9, 
and  10,  from  which  it  api)ears  that  the  policv  was 
canceled  from  duly  21,  1.SS7.  The  owner  had  had 
the  henetit  of  his  insiu'ance  uj)  to  Julv  2tl,  the  (Lite 
of  .seizure,  and  therefore  this  item  should  be  reduced 
to  the  amount  of  premium  for  twenty  days. 

For  the  items  "  beddinj>-,"  "estimated  value  of  arti- 
cles which  were  doubtless  on  board  which  can  not  be 
specitically  mentioned, "anc'  "expenses  at  Sitka, >^1 00," 
there  is  no  evidence  to  support  the  claim. 


,  '' 


THK    ANNA    HECK. 


391 


The  itiMu  tor  "jR'rsdiinl  cxpt'iises  in  ('((mu'ctiou  with 
such  seizure  uiul  chiinis,  ^i^od,"  is  presuinably  l)iise<l 
upon  the  tullo\vin<>'  testimony  of  Captain  Warren: 

i).  And  personal  claims  have  been  made  of  AliOO.    To  what  K..  ii  i:<,  line 
do  they  relate  ?  "• 

A.  Tiiat  would  be  a  proportion  of  my  own  personal  expenses 
made  in  each  of  the  cases. 

It  is  shown  tiiat  these  personal  expenses  were 
incurred  in  the  jjreparation  of  the  chiini  for  presen- 
tation at  Ottawa. 

The  charj.«e  of  >i7')()  for  "counsel  and  other  le^iiil 
expenses  in  and  ahout  tlu'  (daiins  arisin<i'  out  of  the 
seizure"  is  based  u))on  no  evidence  that  there  was 
any  a;ireeinent  of  any  kind  hy  the  owner  or  his  jijieut 
to  pay  lielyea  for  services,  or  that  the  owner  paid 
such  char<>es  or  Ijecanie  lial)le  for  them. 

The  item  for  "sealing-  boat  and  outfit,  8140,"  is 
unwarranted,  as  it  appears  by  the  evidence  that  the 
Indians  of  the  Ainia  Beck  took  it  wh.en  they  started  •^•■i"^-''' i'"e 
for  Victoria,  the  ijresujition  Iteinj^' that  it  was  returned 
to  the  owner. 

The  item  "337  skins  at  S6.5()  each,  s-J,  190. ')()," 
bein<i'  f(n'  a  larji'er  sum  than  would  have  ])een  real- 
ized by  their  sale  on  the  market  at  Victoria  when  the 
vessel  would  have  i)resumably  arrived  there  if  she 
liad  not  been  seized  exceeds  the  dama;>'e  which  the 
owner  sustained  by  their  seizure  and  condemnation 
to  that  extent. 

A  claim  is  made  for  Sll),500  for  "balance  of  catch 
for  the  remainder  of  the  season"  of  1  i87.  'i'he  claim 
is  in  the  natmv  of  future  ])roHts,  which  can  not  be 
recovered  in  any  event,  since  the  vessel  was  totally 
lost  to  her  owner.  The  law  which  <i'overns  in  such 
cases  has  l)een  alreadv  discussed. 

The    items    for    "value    of   vessel,    s,s,()()(),"    jui,!  V"tcM«-3io- 
"expenses  and  hardships  of  crew,  ><13.(>0(l,"  and  the'"  '' 
personal  claims  of  ( )lsen  and  Keefe  have  receiv«'d  full 
i'onsideration  ar  another  place  in  this  arjiument 


■iai 


the  alfred  adams 

Claim  No.  S. 


R.,  ISiiO.  lin. 
10. 


Tliis  cliiini  wjis  prcsciitcil  to  tliis  IIii;li  Coiiunission 
on  tilt'  Jitlidiivit  ot'  Williiim  II.  Dyer,  wlio  was  ciqi- 
tiiiii  ot"  the  scliooiicr  du  lu-r  voynyc  in  tin-  lU'rin;"'  St-a 
in  tilt'  yoiU'  1SS7. 

Tilt'  scliooiuT  I'litcrcd  IVrin^i'  Sea  July  10,  1SS7; 
was  seized  on  the  (itli  day  of  Aujiust  l>y  the  eoiii- 
niander  of  the  I'liited  States  revenue-cutter  Iticliiini 
I'iiisli^  and  (»rdered  to  Sitka,  there  to  he  surrendered  to 
the  ])er.sons  repre.sentin^'  the  authority  of  the  I'liited 
R.,  13g:<,  linr  States  at  that  ])lace.  The  erew  consisted  of  captain, 
mate,  2  seamen,  cook,  and  21  Indians. 

The  commanding-  otficer  of  the  Tnited  States 
steamship  liiclninl  linsli  caused  to  he  taken  from  the 
Aljhd  Atliuiis  tile  followiiifi'  property:  <  )ne  thousand 
tliret'  hundred  and  eijihty-two  seal  skins,  7  doiihle- 
l)arreled  shot^iuns,  3  Winchester  rities,  2  sin<ile- 
harreled  muskets,  an<l  a  small  amount  of  ammunition 
of  practically  no  value. 

There  is  no  evidence  in  the  record  that  the  Alfn-d 

Adams    continued    her    si'alinji'    voyaj^e   after    beinji- 

.seized,  l)Ut   her  captain  stated   in  the  attidavit,  read 

into  tlio  l-iecord,  that  he  refused  to  ohey  the  instnic- 

R.,  I3t)0.  lim'tioiis  of  the  liOiirdiiiji'  otHcer  of  the  RusJi  to  proceed  to 

Sitka,  and  instead  started  for  \'ictoria,  arriviii<>at  that 

])ort  on  the  31st  of  Auji'ust. 

British    ar-      ^loritz  (Trutmaii   is    the  owner  of  one-half  of  this 

47,"iiiie'23.  •■^''''"'  "'"^  Alexander   Frank,  an  American  citizen,  is 

the  owner  of  half  thereof 

»U2 


THE    AI.FKKl)    ADAMS. 


893 


mimissKin 


line  50. 


Moiitz  (Jiitiiiiiii,  jis  tilt'  ndiiiiiiistrator  ot'  the  cstiito 
of  Jiic(il)  (Jiitiiiiiii,  (U'rciisc'd,  iiiiidc  jiHidavit  <»ii  the 
:itli  diiy  (if  XovciidMT,  1SS8,  its  t'ullows; 

That  tlio  miid  ili'iii  of  (iiitiiiiiii  and  Frank,  haviiiii;' a  flaiiii 
a^iiii'st  tlie  (iovernintMit  of'tlu-  I'nited  .States  of  Ainmiia  for 
tilt'  aiiioiiiit  of  twenty  tlioiisaiid  fonr  liundrcd  and  tliiity- 
tliree  dollars,  such  claini  bcin;;  for  the  seizuri^  of  a  sailing 
srhooiiiT  known  by  the  iianio  of  ^I//>V7/  Ailaiiis,  antl  oirnitl  bji 
the  mill  Jinn  of  (lutiiinn  auil  Fninl:,  and  of  certain  seal  skins 
belonginfj'  to  the  said  (Irni,  and  that  inoceediiiKs  have  been  Kxliiblta,  p. 
(•oninienceil  anil  are  now  beinj{  prosecuted  for  the  recovery  214,  Unoll). 
of  such  daiiiaKt^s. 

Ill  tlif  iitlidavit  of  Moritz  (iiitiiiiin,  of  Xovoiidicr 
II,  ISSS,  111'  iiskcd  tlic  |irol»!iti'  court  for  aiitlioritv  to 
sidl  tilt' assets  of  diicoh  (luliiiiin,  "exeeptiiiji'  thereout 
the  saiil  elfiim  of  tweuty  tlioiisauil  four  lmuili'"d  and 
tliirty-three  tloUars  ;ioitiust  the  ruitetl  States  author- 
ities." 

Alexauiler  Frank  swore  in  his  alhdavit,  executed  l''^;!''''');, 210, 
on  the  ;}(tth  ilay  of  April,  iSSis,  that  the  linn  ,  f  (iut- 
nian  i^  Frank  did  at  one  time  own  the  A'^nd  Ailmiis. 
In  thisalliilavit.  datetl  Ajiril  .".Otli,  JSSS,  he  made  oath 
that  he  was  a  half  owner  of  "one  otl'iei'  schooner,  also 
reji'istered  at  the  poi't  of  \  ictoria  in  the  name  of  dacolt 
(jlutman,  ami  under  the  name  of  A////,  liut  formerly 
calletl  the  Alfred  .h/ro//.s." 

It  is  atlmitteil,  oil  liehalf  of  (ireat  iiritain,  that 
Alexauiler  Frank  was  e(|uallv  interested  in  the  opera- 
tions of  the  Aljiril  Adams  for  the  year  18S7.  II'  is, 
therefore,  et|Ually  interested  in  the  claim  as  lile  Ite- 
fore  this  Ilioh  Commission,  inasmuch  as  tlie  tdaim  is 
one  entirely  relating;'  to  the  carj^o  or  earninL;s  ot  the 
ship,  anil  not  for  the  value  of  the  liull. 

Opposetl  to  this,  the  (Jovernmeiit  of  the  I'nited 
States  claims  that  at  the  time  of  the  seizure  of  the 
Alfred  Adams,  Alexander  Frank  w  as  not  only  inter- 
ested in  the  venture  of  the  shV.  h.it  was  an  owner 
of  tHie-half 

B  s 50 


'■!■■ 


i{i>4 


THE   ALKKKI)    AUAMS. 


A»'c<»r<lin<il\ .  tlic  (M»v('rimi('nt  ut'tlic  I'liitcfl  Stntcs 
(U'lik's  )iny  liiil>ility  t(t  AlcxaiuU'r  I'Viiuk  or  his  pnrt- 
lUT  ill  l»ii«iiit'ss,  for  the  reason  that  he  was  an  Aiiit-r- 
icaii  «-iti/cu  at  the  time  of  the  seizure  and  ran  not 
receive  (huna<i'es  for  his  act  connnitted  in  violation  of 
tlie  nnniicipal  hiws  of  his  own  country. 
Kxhibit    80,      'p|,j.  J//).,,,/  Ailaiiis  was  constructed  in  iSal  and  had 

claim    No.  ,    •  .,,_..  , 

N;    K\iiiii-a  carrvinjj'  capacity  ot  dn.i.i  rej{isti're<l  tons. 

Its, p.  ii»(.  'I'he  chiini  is  in  the  nature  of  a  chvini  for  partial 
loss  and  the  measure  of  dania^ies  is  the  charter  value, 
or  deiniirra;,''*'  of  the  Alfnd  Addiiis  from  the  date  of 
the  seizure,  Aujiust  6,  t<»  the  termination  of  the  seal- 
in<;'  season  in  Merinji'  Sea  in  the  year  ISST,  that  is,  the 
■Joth  or  'lhx\\  of  Aiijiiist,  in  addition  to  the  value  of  the 
seal  skins  and  jiuns  seizecl  and  condemned. 

There  is  no  testimony  in  the  liecord  upon  which  to 
base  the  claim  "lej;al  expenses,  >>;{(»(),"  or  the  claim 
"personal  expenses,  >>20'  "  and  no  testim(»ny  is  cited 
in  the  Argument  on  be'        of  (ireat  liritain. 


m 


THE  ORACB  AND  THE  DOLPHIN. 

TLAIMS    NoS.   i>   AND    10. 

'V\n-<liiiir  iiixl  hitljiliiiiWi'Vi'  scliuoin'i's  liii\  in^jiiixili- 
iiry  stoiui  power  !I1h1  m  rt'^iistcrcd  tuiiiwi;;'!'  of  7(1. H?  :iiiil 
(iO.ld,  n'.s|H'ctiv('l\-. 

'V\\v  vessels  lieiii;;'  owned  iit  tlie  time  ot'  tlieir  seiz- 
ure l»y  'riioiiiiis  II.  ('oo|»er,  m  eivil  citizen  ot  the 
I'nited  St.'ites,  iiiiy  liiiitility  on  tlie  pnrt  of  the  I'nited 
Stiites  to  tliis  cliiiiiiinit  is  denied. 

In  IS.STthe  '  hooiiers,  iifter  seiihny  on  the  coiist, 
entered  Merino  Sen  in  eoniiuiny,  .lnl\'  6.  On  ,Iulv 
\'l  tlie  hnl/iliiii,  witli  (IIS  st'id  skins  on  hoMi'd,  wjis 
seized  hy  the  I'nited  Stiites  revenue  stcfinier  nrar: 
mid  on  ,Inly  17  the  (Inirr,  with  7(!1)  seiil  skins  on 
hojird,  WJis  idso  seized  l)y  the  smne  revenue  cutter. 
The  two  vessels  were  towed  to  I'liiihiskii  iiiid  troiii 
there  sent  to  Sitkii.  'The  Doljili'm  nrrived  on  .Inl\-  ,')1 
mid  the  (irarr  the  diiy  followini^'.  ( )n  Septemher  11 
the  (have,  her  outfit  nnd  Ciir^^o,  were  lil)eled  hy  the 
I'liited  Stiites  iittoriiey  for  the  l>istrict  of  Aliiskii  for 
violiition  of  the  statutes  of  the  Tnited  Stiites.  (Mi 
Septenil)«'r  liJ  the  linl/iliiii,  her  outfit  iUid  ciirji'o,  wi-re 
also  libeled. 

Appeiininces  were  entered  for  ciicli  vessel  on  hehiilf 
of  her  owner.  On  Octolier  11,  1SS7,  decrees  of  con- 
deinnntion,  forfeiture,  mul  .side  were  entered  ii^iiinst 
the  scluMiners,  their  outfits,  iuid  ciir^i'o. 

Sulisequently  the  ves.sels,  portions  of  their  outfits, 
iind  the  sciil  skins  seized  were  sold  under  the  decrees 
by  the  United  Stiites  iniirshiil.     Hy   reiison  of  their 


.\i>|i.ii.|i.iiri, 

liiiP  .55 J  ji. 
lll,lino5r>; 
(Jliiiiiis  ia 
III'.  C'liHe, 
Am.  K'l'p., 
vol.  I,  (ip. 
1.-*,  KiS. 


i;.,  isiili,  line 


l!.,lSlil,linn 
i:i.-j:i. 


K'..  111.',  line 
!il;i;.,lli;7, 
liiiu  H7. 

A]>p.  II,  |i, 
171'.     A  pp. 

li,  p.  io;i. 


\PI>.  II,  pp. 
nui,  171. 


;ti'| 


31)6 


THE    GRACE    ANJ»    THE    HOI-PMIN. 


Br.  Ar;;.,  pp. 
122.  12:!. 


Ante.  p.  31 1 
Ante 


st'izurc  tlif   (iiiirr  iiiul   Dul/i/iii/  hccaiiic   totiilly   \ost 
to  tlii'ir  owiuT. 

'I'lii'  items  iittiU'liiMl  to  tlu'  sclicduU'  of  tlic  (liiniiifics 
clainu'd  in  tlu'  ciisc  ot"  oiicli  vessel,  wliieii  appeiir  in 
till'   Armmieiit  on    heliiilt'  of  tiie  t'laiininit.   those   for 


i).;ii!i.   "value  of  vessel,"  "expenses  and  liaiflsliips  of  crew," 

and  those  for  the  ]»ersonal  claims  of  the  captain  and 

mate  of  each  ves.sel  have  heeii  alnady  considered. 

ciniinsiii  itr.      'I'he  attention  of  the  Ili;:h  Conunissioners  is  called 

KoPm   v"i!'<'  ^hi-  fact  that  there  was  no  mate  of  the  schooner 

J,  i>.  207.     (i)-i(((\  ;iiid  no  claim  on  Itehalf  of  oi\e  was  made   n  the 


claims  snl)nntted  at  I'ar 


IS. 


■i:!;l{.,l(!17. 


R..  fiis,  lino  'I'he  witness  Norman,  who  testilie(l  to  havin<i'  acted 
as  mate  of  the  vessel,  was  the  en;^ineer,  and  his  testi- 
mony shows  that  he  was  not  detained  or  imprisoned  at 
Sitka. 

K.,  UUi,  line      The   item   in   each   schedule  for"I.e';al  expel 


49 


iscs, 


vS,")0,"  is  composed  of  charjics  l)y  lielyea  and  Itv 
counsi'l  at  Sitka,  The  former,  so  far  as  the  Record 
discloses,  were  for  the  preparation  of  the  claims  for 
presentation  at  Ottawa,  and  there  is  no  evidence  that 
the  owner  is  even  contin;^eiitly  lialde  for  their  pa\- 
meiit.  The  \v)X''\\  expenses,  which  it  is  claimed  were 
incnri'<'d  at  Sitka,  are  not  shown  to  have  lieen  |iaid 
1»\    the  owner,  oi'  that  lie  contracte(l  to  pa\'  them. 

The  items  inchideil  in  the  schedules  for  "  tiai;-." 
"heddinj:-,"  "estimated  \alne  of  articles  which  were 
douhtlcss  on  l»oard  the  \essel,  and  which  can  not  lie 
specilicalh  mentioned,"  "passaji'eof  master  and  crew, 
>^2on,"  lia\i'  no  e\idence  to  support  them. 


T 


line  anil  iicrsoiial  expenses, 


^■_'.")(), '  are  not  pn 


! 
erly  incliide(l  in  the  sche(lules,  lieiii;^'  incurred,  it   at 

all,  in  the  preparation  of  the  claim  tor  presentation 
at  (Htawa,  and  l»ein,i'  covered  liy  the  item  charjicd  in 
the  'riiornton  claim. 

A  claim  is  made  in  the  case  of  the  (Inicr  for  "bal- 
ance of  catch    for   the   remainder  of  the  season"  of 


THE  GKACK  AND  THE  DOLPHIN. 


397 


1SS7,  si;),;-,oo,  and  n   similiir  cliuiii  is  niinU'  in   tlic 

ciisc  nt'  tlic    lh)li)liiii  amoiiiitiii<i-  to  >;■_*•_*, 100.     Tlicsc 

cliiiius   iuv   for   future  protits  wliicli  cini   not  he  rc- 

covcrcd   ill  any  event  since  the  vessels  were  totiiHx" 

lost  to  tlieir  owner.     Tlie  law  wliieli  jioverns  in  c.isesAute, p.  loi. 

of  total  loss  has  l)eon  alreaiU-  discussed. 

The  items  in  the  schedule  of  the  claim  made  for 
the  (iniiT,  "three  iron  tanks,  tw<'lve  water  casks, 
twelve  <iuns,  three  riHt^s,  cannon,  uim  tools,  two 
l)oats,  cook  stove,"  are  based  upon  the  statements  of 
James  1).  Warren,  the  manai;in,ii'  aji'eiit  of  the  ownei-  '>'■•  "•'i'- 
The  testimony  of  this  witness  shows  that  his  evidence 
relates  to  the  cost  of  these  articles,  and  not  to  their 
value  at  the  tiiii<'  of  seizure.  In  connection  with  the 
ditfereiit  articles  in  rei;ard  to  which  he  wa^  (|Uestioned, 
he  stated  as  follows: 


Tliiit  is  Just  wliat  tlu'.v  would  cost. 

(}.  How  UMU'Ii  slioulil  you  say  tlicy  were  wovtli .' 
A.  That    s  about  what  tlicy  cost. 


\i..  UHit,  line 

i;.,  li;!!),  line 
5t!. 


().  How  uuu'li  woiihl  that  cost! 
A.   Fifty  (lolhu's. 
().  Thiir  is  the  cost  price' 
A.   Vivs. 


i;.,  ii:!!i,  line 
(ill. 


There  is  nothinii'  in  the  K'ecoril  to  deteimiiie 
\\hether  or  not  the  artitdes  were  new  when  seized. 
l)Ut  since  the  vessel  ha<l  sealed  throuiihout  the  season 
of  iSSd,  tile  iiresumption  is  tliat  nuniy.  if  not  all.  hail 
iieeii  used  tor  over  a  year  and  \\ ere  not  worth  their 
cost  price  at  the  time  the  \  t'ssel  was  seized. 

The  item  for  "twelve  nuns  and  three  rifles"  appears  i;,,  iimt,  lino 
to  rest  upon  the  tt'stimony  of  Warren.    The  return  of    '"'^• 
a   part  of  them,  and   the  sul)seipient  pundiase  of  the 
Italance  Ity  Warrei\,   .re  discussed  in  connection  with 
similar  items  a]»pe,i  iiiLi'  in  the  schedule  of  the  Ihiljtli'm. 

The  item  in  th-   ■••hedule  "insuraiu'c,  NS4.S.7")"  is 


398 


THE   GUACE   ANM)    THE    UOM'HIN. 


Ai.p.  H.  102,  i,.,s,.,l  upon  a  staUMiu'iit  in   Kxliibit  X<».  64  ((J.  li.), 

hue  2o.  ,    .  -J  .     ™     ,v  1    .    V         II        1  •      •  1 

clanus  Nos.  (»,  7,  1>,  and  10.  liy  tins  it  I'jtjK-ars  that 
tlio  polii'v  was  canceled  (»n  Aujiust  IStli,  and  the 
only  damage  that  the  owner  coultl  have  sustained 
hy  reason  ot' the  seizurt'  was  the  amount  of  premium 
tor  the  thirtv-one  days  from  .luly  17th  to  August 
l<Sth,  liavinji'  received  the  heneiit  of  his  policy  from 
.lannarv  3,  18S7,  to  the  date  of  seizure. 


The  item  "Kl!)  skins,  at  >^6.r)0  each,  >s4,!)!»S" 


wi 


11 


he  d 


iscussed   HI   connection  with   a   similar  item   a) 


ih 


peariii<i'  in  the  schedule  of  the  damajics  claimed   in 
the  case  of  the  /iiil/iliiii. 


!{.,  116."),  lino 
30. 


in   the  cross-examination   o 
made  the  followiii';'  statement: 


f   ('apt 


am 


\y 


www,    \H 


I  tliiirtcrt'd  liur  |tlie  (irace]  to  the  riiited  States  inaislial, 
and  tlie  Tnitcd  States  inarslial  allowed  us  to  take  all  tlic 
l)r()visi(»ns  that  was  left  on  the  (Iracciuu]  the  Ihilpliiii  to  help 
lit  her  to  ^o  to  rnalaska  to  brinjj  tiie  skins. 

K.  IK!.-,  ijnr      ]/, „.   ^\^\^  charter  AVarreii   received  >^2,5(HI,  (»ut  of 


•)(i;  1  I7!i 
liuol's. 


which  the  w. 


es  ot  the  captain,  mate,  and  crew  wen 


jiaid.  leaving-  a  l)alaiice  in  the  hands  of  Warren  <if 
>«2, (>.'{(•.  N'o  reference  is  made  in  the  Uritish  Argu- 
ment to  this  charter,  and  no  deiliiction  is  made  for  the 
money  ri'ceived  therefor.  It  is  claimed  that  from 
whatever  amount  of  damajics  sustained  hv  the  owner 
as  a  result  of  the  seizure  there  must  he  <leducted  the 
sum  thus  received  l»\-  ( 'aptaiii  Warren. 

In   the   case   (d'  the    Itdl/iliiii   the   items   t'l 


•hest, 


'iron  tanks, 


•casKs 


.'(>  iiuns  at  >^4(t  each. 


lit   nuizzle-loadiii"'  "iins   at    ^I'd    each, 


4   riH( 


It  >^ •_'•_*.."»() 


eacli 


1. 


»oml)  liims, 


tool> 


and 


iiii;-  stove,"  are  based  u|)on  the  testimoii\'  of  Captain 
Warren,  and  what  has  lieen  said  in  reference  to  his 
testimonv  in  coiisideriu":' similar  items  in  the  schedule 


of  th 
here. 


d  i 


e  damages  claimed  tor  tlie  dntir  e(piall\'  applv 


th 


lib 


h'.^  U71,  Inio      'p]„.  (ii'(ijin  IS  mentioned  in  this  schedule  areclerived 
trom  a  list  contaiiieil  in  an  account  hook,  from  which 


THK  OKACE  AND  THK  DOLPHIN. 


309 


the  witness  Wiirri'ii  tcstilicd.  In  liis  cxiuniniition  in 
ret'crcncc  to  tliis  nccdunt  liook,  inid  jinrticnliirlv  to  this 
list  on  which  the  item  tor  fireiirins  in  the  o])|)osin<i' 
Arjiunient  is  biise<l,  Wiuren  testified: 

Q.  And  at  the  foot  is  thia  stiitenieiit,  "The  j-uiis  returned."  K-..lie2,  line 
A.  Yes:  that  is,  tlie  Indian  guns.    That  statement  is  tliat    "'' 

14  were  retnined  and  that  one  of  my  own,  a  private  fowlin<> 

piece,  was  returned. 

***** 

The  Indians  on  tlie   holphin  got  tlieir  guns  baelc;    I   do  R,  1159,  line 
not  know,  but  I  suppose  that  the  Indians  on  tlie  (Inur  <;<)t     •^^• 
theirs  buclc  also.    They  were  there  at  tlie  time  and  I  know 
they  were  given  what  they  claimed. 

(j.  Do  you  mean  by  "  their  guns"  guns  f'luiiished  tlieiii  by 
you  ■'. 

A.  No;  their  own  guns.    There  were  quite  a  number  of 
them  seized. 

il.  Were  there  any  guns  on  the  l><>lpliin  besides  those  you 
did  not  get  back  ' 

A.  Yes;  (|uite  a  lot. 

Q.   How  many? 

A.  'I'liere  was  abmit '-'1  shotguns  and  about  trifles,  as  near 
as  I  can  remember. 

Q.  Do  you  mean  belonging  to  the  Dolphiu  '. 

A.  Yes,  sir. 

It  is  iippiirent,  tlieref'ore,  t'nuu  this  evi(UMU'e  thnt 
tlic  "ten  iiiiizzlc-loiidinj;'  ;L;uns"  ;ind  five  of  the  shot- 
uuiis  were  I'ef  umI,  wiiieh  would  eorrolioi'ate  tiu' 
stiiteiiieiit  of  th'  w  itiies^  of  the  luiiulier  of  ;;uiis  t;ikeii 
;is  "iii)oiit  21  siiotu:iius  iind  jilioiit  4  rifles." 

The  witness  WiUTeii  stnt,  ^  tliat  he  hoiii^-ht  some  ,,f ''■•:.; '•^•'' """^ 

these    "inis    iit    auction  when    tliev  were   ><iid    1)\    tlie  l.'-.  U7ii,  lino 

I'nited    Stiites  inarshiil  in  Aiiril,  ISSS.      'I  he   sale  to  ."„    ,_, 

which  reference  is  made  occurred  on  .\|inl  19,  IS.Sri,     line  in. 

at  Sitka,  at  which  time  tlie  sale  of  seal  skins  also  took  App.  M.,  171, 

place.     Tile  ^juns  of  the  l>i>ljilihi  were  jiurchaseil  '>v  ^  J'"^|p',.jj, 

Warren  tor  N2!I'J.5<>,  and  those  of  the  ^ /  (/<r  for  sy  1  .r)6.    iiiie4s. 

Suhseouentlv  to  this  sale  the  marshal  sold  "  ;iuns, 

.  .        ,,    ■  ,•  .1  1  I  i  I    I  •        I'      A|i|i.  1!.,  171, 

amminution,     etc.,   ti'oin    the    scliooner    liDliilini,   for    liiioi),^, 

'^6'_*.4I,    and     "jiiins.    ammunition,"    etc,    tV.  iiii     the 

schooner   (inirc   for   ^^UJi't.-JT.      .Vs  tlir-i     '  iiter  sales  Aiml  i^,  178, 

hue  1)4. 


'i 


if' 


400 


1?.,  1170, 
51. 


App.     IV 
ll'O. 


K.,  1181, 
40. 


THE  GRACE  AND  THK  DOLPHIN. 

iucludi'd  tlie  iiinniuiiitioii  wliii-li  wns  taken  tVoiii  tlio 
vessels,  it  is  apparent  that  the  majority  of  tlie  fi'ims 
were  disposed  of  at  the  t.ale  which  took  phice  on 
April  111, at  which  C'ai)taiii  Warren  was  the  pnrciias«'r 
in  l)otli  instances,  'riiere  is  no  evidence  before  the 
C'onnnission  that  the  f^nns  were  not  in  as  <idod  order 
at  the  tiin«'  of  sale  as  when  they  were  si'ized,  or  that 
tliev  had  not  received  proper  care.     ( )n  his  redirect 

liiicexaniination  the  witness  was  asked  whether  he  had  an 
opportiMiity  to  inspect  tlieni,  or  if  he  knew  what 
care  had  heen  taken  ()f  tlu'in  from  the  time  of  seiznre 
imtil  the  anction  took  ])lace:  he  was  uot  aske(l  in 
what  condition  the  nuns  were,  or  how  many  he  ])ur- 
clia.sed  at  that  time.  It  is  therefore  claimed  liy  the 
I'nited  States  that  the  only  damaji'i'  which  the  owner 
sustained  l)y  reason  of  tlie  iirearms  seized  was  the 
amonnt  wliicli  Captain  Warren  paid  out  at  the  mar- 
shall's  .sde.  namely.  >;-J!)'J.")()  and  >i!)1.5(l. 

i  I'-  '["lie  item  "insurance,  >i72'J.71,"  is  founded  njion 
tiic  statement  in  Kxiiiliit  No.  ()4  ((i.  15.).  ( 'laims  Nos. 
<!.  7,  0,  and  Id.  It  appears  therein  tiiat  the  policies 
were  canceled  on  August  2.  1SS7:  the  only  damajic 
in  this  particular,  therefore,  which  the  owner  sullereil 
was  the  amount  of  premium  from  duly  l'_*,  the  day  of 
seizure,  U|)  to  .Vu^ust  2,  when  the  ]M>licies  were  can- 
cele(|.  lie  liavinii-  had  the  iieueiit  of  the  insurance 
froui  dannar\'  ."i,  lS.'-!7,  when  the  policies  were  issued, 
up  to  the  time  of  the  se'zure. 

The  item  '•aimnunitio-,i  extra"  has  n«>  evidence  to 
sustain  it. 

In  referenci'  to  the  claim  for  "(!l.s  skins,  at  i^O.oO 
eadi,  >^4,(tl7,"  and  the  claim  for  "7(;!l  skins,  at  N(i.-,() 
each.  >^1, ill's,"  fur  the  (iidic^  the  K'ecord  discloses 
that  tlie\  wen-  purchased  l)\-  Warren  at  the  sales 
which  took  plac<'  on  .\u;iust  lH,  18HS,  to  which  i-ef- 
erence  has  Iteeii  made.      His  testimony  is: 

line  Q.  ( 'nil  yoii  iiiiiki'  a  statt'iiKMit  of  till'  seals  you  liavc  Itouglit 
t'roni  till!  various  V6.ssel.s.  You  tfilil  us  tiiat  you  thought  you 
could  do  so. 


THE    GWACE    AND   THE    DOLPHIN. 
A.  Yes;  it  is  as  lollows. 


401 


Scliodiier. 


Seals. 


Prii'6 
cacli. 


Alpha US!)  $;i.  tis 

Lotti(^  Fairlield 413  ;i.  70 

Dulphiu i:[fi  ;i.  7r) 

(iraco ;i;.'/  h.  30 

Alfred  Adiims 1,  378  3.  30 


That  is  the  lot  that  I  liouglit,  but  on  a  division  I  got  121 
more. 

Till'  R'tiinis  nt'tlu'  United  States  niiirslial  for  tliest'ApP;    n,   p. 

11  ^11  1-       1   .•  1  11-  1         Id.liueis: 

sales  show  tiiat  lie  ivalized  troin  the  sealskins  011  tlie    I78,iiue45. 

Jhlpliiii  !S2,23')  and  from  those  on  tlie^//'wr  >^-2,')ol.lO. 
'I'lie  owner,  liaviii<i'  procuretl  the  skins  for  tliese 
amounts,  sustained  damaii'cs  b\-  reason  of  their  seiz- 
ure only  to  tlie  amount  wliicli  was  actually  paid  for 
them  to  the  Tnited  States  marshal. 
n  s .")! 


m  I 


1 


K..  1210.  line 
31. 

R..  121L>.  line 

■IX. 
H..  1213,  lino 

IS. 
H.,  7SS,    lino 

28;       1211. 

Iinr21. 
K..  1211.  line 

50. 


K..  121t;.  lin.' 
20. 

K..  128X.  line 

10. 
li..  12!iT,  lini' 

17. 

K..  12118,  line 
12. 

h'.,  1277,  line 
25. 


\i..  1217.  Untt 
50. 


K..  1217.  lini> 

58. 


THE  ADA. 

Cl.mm  No.  11. 

Till'  Add  WHS  ii  scIkmiikt  ot"  (!").2;{  tons  rcj^istcr. 
Hit  owiKTs  ill  .liiiic,  1SS7,  were  . I. . I.  Gray  iiiul  W.  K. 
I'iiH'.  Slic  siiiK'il  tVoiii  \  ictoriii  tor  IVriii<>'  Sea  on 
.TniK'  17,  1887,  carrviiifi'  seven  canoes,  one  liiiiitin<;' 
l»oat,  and  a  st«'rn  lioat.  She  entereil  tlie  sea  .Inly  16, 
and  contiiHUMl  .sealinii'  in  those  waters  until  the  inorn- 
\u<^  ot'  Aiiji'iist  2.">,  at  wliirh  time  she  was  seized  l)v 
the  Uniteil  States  revenue  steamer  Jicin;  liavinji' on 
lioard  1,S7(I  seal  skins.  She  was  towed  to  Unalaska, 
where  she  remained  two  days,  her  seal  skins  and  tire- 
arms  heinji'  removed.  From  th;'t  port  she  was  sailed 
l»y  her  erew  to  Sitka  under  orders  ot"  the  commaiidin};' 
oilicer  who  made  the  sei/.nre,  where  she  arrived  Sep- 
temi)er  .").  Septeinlier  13  the  vessel,  her  oiittit  and 
car^o  were  lilteled  l>\-  the  I'nited  States  attorne\'  tor 
the  District  ot'  Alaska,  anil  on  Octolier  11  a  decree  ot' 
condemnation,  t'ort'eitiire,  and  sale  was  entered.  ( )n 
the  same  ila\  one  W.  ('lark  filecl  a  claim  ot'  owner, 
statiiiii'  therein  that  he  was  the  diiK'  authorized  attor- 
ney for  ■' ('I'aiu'.  owner."       The  \cssel  was  siilise- 

<|iientl\  sold  under  the  decree.  \\v  reason  ot'  the 
sei:.aire  she  liecame  totalK'  lost  tit  her  owners. 

'I"he  .I'/'Mvlieii  seized  had  in  tact  com] ileted  her  seal 
hiiiitiiii;'  in  Herinj;-  Sea,  .lames  (laiidin,  the  captain, 
haviiiii-  stated  that  the  len;:th  of  his  voya^i'e  would  he 
determined  ahsuliitely  l>y  the  weather.  The  sclinnner 
Allif  I.  Alf/ir  was  seized  on  the  same  day.  a  short  time 
Ix'fore  the  Alia.  ( 'harles  ]•].  K'aynor,  the  master  of  the 
A/(/ri\  testitied  that  he  had  tinished  sealinjif'or  the  sea- 
408 


I  m 


M 


THE   ADA. 


408 


i 


son,  aiul  that  lu'  liiid  iittciuptcd  to  leave  the  sea  tlie 
iiij>ht  before,  l^poii  cntss-exaniinatiou  Ca|ttaiii  Hay- K.,  1256,  line 
nor  was  asked:  "Wliat  preparation  liad  you  made  on  ^*'" 
the  •i4tli?"  To  wliieh  he  answered:  "I  turned  my 
boats  all  Ixtttom  up  on  deck  and  laslied  them,  and 
stowed  evervthinji'  away  and  made  fast."  The  evi- 
dence relating-  to  the  duration  of  the  season  in  the  ^^„jp  j,  ^og 
Aear  ISS;?  has  been  collected  and  discussed  in  another 
part  of  thisar<iument,  entitled  "  Duration  of  the  sealing' 
season,"  wiiere  it  is  shown  that  the  hunting  period  i'or 
that  vearen(h'(l  l)etween  the2()th  and  25th  of  August. 
It  is  therefore  claimed  by  the  LInited  States,  from  the 
testimonvin  general. and  from  that  of  ( "aptain  IJaynor 
in  particnlar,  that  the  weather  had  become  unfavor- 
able for  sealing  purposes  ])y  the  2''>th  of  .\ngiist,  1SS7, 
and  that,  as  the  weather  was  to  determine  the  extent 
of  her  crui.-;e,  the  voyage  of  the  Adii  was  ended;  and, 
furthermore,  she  had  secured  a  catch,  which  demon- 
strates that  her  season  was  over. 

The  item  for  ^12(1  in  the  claim  |)resented  in  the 
Argument  on  behalf  of  (Ireat  Britain  terme<l  "Pre- 
mium of  insurance"  can  not  be  allowed,  as  the  voyage 
was  completed  and  she  had  received  the  benefit  of 
such  insurance. 

it  a]»pcars  tVoni  the  evi(h'nce  of  .lames  (Jandin,  the 
master,  that  the   canoes  which  were  carried   l)y   '^''i' ,{ _  i.,ij<  nuo 
Alia  were  delivered  into  the  possession  of  th.e  Indian    :f. 
hunters.     This  fact  was  brought  out  upon  the  cross- 
examination,  and  the  witness  in  his  redire«'t  examina- 
tion modified  his  statement  only  in  the  jiarticular  that 
he   did  not   know  whether  they   were  gixcn    to    the^^    j.,,^  ^.^^ 
Indians,  but  he  states  that  ordrr,'^  had  hccii  fiirct/  by  the    "tj."  ' 
comt  to  felmsr  flic  amors.     It  is  therefore  claimed  by 
the  l.^nited  States  that  as  no  evidence  is  j)roduced  to  «•,. ^1218,  line 
show   that  the  order  was  not  obeyed,  and  that  the 
Indians  had,  previt>us  to  the  dei)arture  of  (Jaudin, 
been  in  possession  of  their  canoes,  the  presumption  is 
that  the  canoes  were  retained  bv  the  hunters;   and. 


ill 


404 


THE   ADA. 


59. 


K. 


line 
VJ,  ">."..  ">!1. 


furtlicriium',  that  the  canoes  hoitig'  the  property  of 
the  Indian  hunters,  (ireat  Ikitain  is  n»»t  entith'd  to 
present  a  claim  tor  tlieni  in  any  event. 

R.,  1213,  line  '|'i„>  (,/„  ,..|n-i('(|  one  huntiii"-  boat  and  a  stern 
hoat.  The  hitter  heh»n<ied  to  the  vessel  and  her 
outfit,  and  would  therefore  he  included  in  the  valua- 
tion of  the  schooner.  It  is  shown  l*y  the  accounts 
suhinittetl  in  evidence  l)v  the  claimant,  d.  ,1.  (>ra\-, 

R.,  12'JH.  lino  that  in  Mav  he  i»urchased  three  sealing  boats,  which, 
delivered  at  Victoria,  cost  him  >^4'J0.r»7.  One-third 
of  the  sum  would  l)e  >>140.1!*.  As  the  boat  seized 
liad  been  used  at  tiie  time  of  seizure  for  one  season, 
it  would  have  depre«Mated  in  value  about  one-third. 

('.  \.  Lundl)er;i,  the  mate  of  the  Ada,  stated  in  his 
examination  that  the  shotyun  which  he  used  was 
returned  to  him,  and  that  he  saw  some  hunters  of 
the  A<Ik  >iettin<i'  theirs  also,  lie  further  .stated  that 
an\  one  who  claimed  his  <iun  received  it.  It  is  there- 
fore contended  on  the  |iart  of  the  United  States  that 
the  jiims  of  the  vessel  were  returned  to  the  hunters, 
and  that  upon  such  delivery  the  United  States 
became  no  loiiji'er  liable  for  their  seizure. 

It  appears  from  the  evidence  of  the  mate  that  the 
voxaji'e  fr<im    I'nalaska  to  Sitka  occupied  nine  da\s, 

R.,  7ni',  line  and   that  tlie   provisions   on  board  were  sulHcient  to 
"''•  maintain  tlie  crew  and  hunters  for  onlv  ten  days  after 

their  arrival  at  Sitka:  that  l)esides  the  i»rovisi(»ns  used 
by  the  crew,  a  policeman  took  from  the  schooner's 
supplies  7.")  poimds  of  beef,  2  mattes  of  rice,  an<l  half  a 
l)ucketfiil  of  butter.  It  would,  theretbre,  s( cm  that 
at  the  timeof  her  seizure  thv  .Idn  had  on  board  scarcely, 
if  any,  more  provisions  than  were  necessary  tor  her 
:,,  ij,„.  return  vovaii'c  to  \'ictoria.     The  witness  I.iouis  Olseii 


K.,7!M»,lin«'l. 


R.,   7112,   lin 
17. 


i;.,  nil 

•"'•''•  li'ave  the  cost   of  provisions  per  month  for  an  Indian 

R.,  i;tii,  iinciis  between  >^3.1tl  and  >>.■{.■_*;"»,  and  for  a  white  man 
R.."i24.">,  line^Vom  >^11  to  ^I'J.      Vhr  Adn  carried  seven  white  men 

8*'  and  fourteen  Indians,  for  which  the  provisions  would 


THE    ADA. 


405 


liMvo  cost,  for  the  tweiity-oiK'  d.iys  t'nnu  seizure  to 
the  time  the  provisions  tniled,  aintroxiniiitely  ^W. 

There  is  no  evidence  in  the  Record  as  to  the  nniount  "  uitoTis.'^^' 
of  "aniniunition,  shii)cliaudh'rv,et«'.,"  for  which  <laini 
isniach'  in  the  British  Ar<>unient,otlier  than  the  annnu- h.,  ii'ir.,  line 
nition  referred  to  in  the  h)^'  of  tlie  />«/•,  the  vahie  of    '*• 
which  is  not  (U^ennined  l)y  the  evidence. 

There  is  no  evidence  l)efore  the  ( "onunissioners  as 
to  the  "l)eddin;i"  chiinied  to  liave  been  seize(l  on  tln' 
A(l(i,  or  the  vahie  of  sucii  "l)ed(hnji:"  or  as  to  the  vahie 
of  tlie  "nautical  instruments,  etc.,"  seized. 

Tlie  item  for  >>(I(M)  for  ''estimatetl  value  of  other 
unconsumable  sealinji'  outtit  ami  articles  which  were 
tlonhtlrss  on  Itoard  the  vessel,  l)Ut  which  can  not  he 
s])eciallv  mentioiu-d,"  is  an  excessive  and  exorhitant 
(daim,  wliiidi  lias  no  foundation  in  fact  to  supixirt  it. 

There  is  no  evidence  that  an  attorney  was  employed 
1)V  the  owners  of  the  vessel,  or  their  aji'ent,  for  the 
defense  of  the  vessel  at  Sitka;  and  that  whatever 
services  were  performed  l)y  Mr.  Clark  as  the  proctor 
(»f  record,  which  a]>i)ear  to  have  been  solely  tlie  liliiiu'  of 
a  (daim  of  owner,  were  done  on  his  own  motion.  amP* 
witliout  aii\-  authoritv  whatsoever,  and,  fiirtlu-r,  that 
the  owners  did  hot  l)i-('ome  liable  for  such  services. 

The  item  entitled  "i\xpeiises  and  hardships  uf Ante, p.iU'J. 
crew  22  at,  x)ti/,  >i.")00"  (which  has  Ik-i'II  t'lToiieously 
imdiKh'd  twice  in  the  schedule  of  dama;^es,  and  ap- 
pears to  have  been  iucludeil  in  the  sum  total),  are 
jiersoiial  claims,  -vliich,  net  Icivin;.!'  i)een  presented  to 
the  Tribunal  of  .Vrbitratioa  .it  Paris,  and  m.l  liaviii;L;' 
been  incduded  in  the  "additional  (daims"  referred  to  in 
the  preamble  of  an  a]ipendix  to  the  Convention  of 
Fei)ruarv  8,  ISHG,  can  not  l)e  allowed  i)y  this  llio'li 
Commission,  and  coidd  not  lu-  in  any  event,  even  il 
there  was  sutHcient  evidence  to  estalilish  smdi  (daims, 
\vhi(di  the  rnite(l  States  insist  there  is  not. 

(Irav,  the  mauaiiinu'  owner  of  the  .Ida,  stated  in  his  i;.^i'.';!5,  line 
examinati<jn  that  Jie  was  unalde  to  tell  who  employed 


.  l:'IIS.  lino 
I.-.. 


406 


THE    ADA. 

Hclvca  ill  connection  with  tlie  Aila,  and  there  is  no 
evidence  l)et'ore  the  CoininisHion  slio\vin<>' tluit  Helyeji 
was  einiihned  hv  the  owners  or  tlieir  ayeiit  in  the 
|ii('|»aration  of  this  chiiiii  at  Ottawa,  or  that  tliey  he- 
canie  ohiijiated  to  pav  him  any  sum  whatsoever.  Tlie 
item  in  the  Argument  on  helialtot"  (Jreat  Britain  en- 


titl 


ed 


Me 


\ea  s  chaim's 


is  un\varrante(l,  and  has  ii< 


K..  l-'it!.  lilM.lijill 


evKU'iice  to  sui»|)ort  it. 

rhere  appears  in  the  schedide   reterred  to  an  item 
entith'd    "Personal   exjieiises  of  owner   from    Voi<o- 


!(..  IL'l'li.  liiK 

IL'. 
If..  IL'L'l!,  line 

ir.. 


la."  The  evi(h'iice  discloses  tliat  (Jray.  tiie  maii- 
;i"iii<;'  owner,  arrived  from  Yokohama  on  tiie  Aila 
,earl\  in  April,  1SH7,  and  tliat  after  tlie  vessel  sailed 
for  Uerinji'  Sea  he  returned  t(»  .lapan.  in  ()clol)er 
or  Xoveml»er,  1887,  he  received  a  cal>lej;Tam  from 
Moss,   his  ayeiit   at   \'ictoria,   iiiforminy   him   of  the 


It..  iL'iii.  linn  seizure  of  the  schooner,  hut  he  did  not  return  to  \' 


ic- 


toria  for  n  //far  from  the  time  of  its  receipt.  A  letter 
was  produced  which  was  received  l»y  him  from  Moss 
in  the  latter  part  of  Novemher.  ISSS,  relative  to  the 
hondinji-  of  the  vessel,  ui»oii  the  receipt  of  which 
he  claimed  to  have  returiiecl  to  \'ictoria;  hut  in  view 
of  his  former  kiiowledii'e,  and  presumalile  correspond- 
ence with  his  aji'eiit,  Moss,  the  implication  that  the 
seizure  was  the  immediate  cause  of  his  return  to  Vic- 
'oria  can  not  he  admitted.  As  his  place  of  residence 
was  that  city,  and  has  been  such  up  to  the  ju'eseiit 
time,  the  tdaim  for  his  e.\]»eiises  from  Yokohama  to 
his  li 
1) 


ouit\  which  are  exorl)itaiit  in  amount,  should  not 


H'  allowed  ill  anv  evt'iit. 

It  ajipears  from  the  testimony  of  Gray  that  Moss, 

K.,  1231,  liiiefl,,.   a;ieut    of   the  vessel   and  of  the   I'fucJofic,   also 

K.,  1235,  line  owned  hy  (Jray  in    1S87,  was  a  purchaser   of  seal 

E^^i932  line'*'*'"'*   "'    ^^^^  V^ictoria    market.     As    he   guaranteed 

23.     '        the  payment  (»f  a  })art  of  the  outfit  accounts  of  the 

Add   ill  1887,  and  as  there  is  no  evidence  that  he 

received  any  remuneration  for  his  services,  the  pr<'- 

siimiition  is  that  he  t<»ok  the  responsibility  of  agent 


THE   ADA. 


407 


jind  ^iuariintor  tor  tlic  piirpost;  «»f  s«'ciinii<i'  fis  n  dciiliT 
tlin  seal  skins  wliii-h  tlic  Aila  iiii;>lit  tako  in  lier  north- 
ern cruise,  inul  tlmt  tlie  ciitcii  of  the  Aihi  wonUl  have 
been  tlieret'ore  marketed  at  Victoria. 

Thi;  chiini  tor  "estimated  catch,"  heiny  For  pros- 
j)ective  profits,  can  not  he  alhtwed,  as  the  vessel  was 
a  total  loss  to  her  owners. 

The  value  of  the  vessel  and  the  personal  claims  of  Ante,  i..:ti5. 
James  (Jaudin  and  (".  \.  Lundher"'  have  heen  already  Ante, p. 3ii). 


n 


consK 


lere.l. 


'i'he  I'niteil  States  admit  that  the  owners  suffered 
(hnnage  by  rea.son  of  the  seizure  to  the  amount  of  the 
value  of  the  Atltt,  in  the  condition  which  she  was  when 
seizeil,  in  the  market  of  \'ictoria  at  that  time,  of  the 
market  value  of  t-he  articles,  not  properly  includecl  as 
a  part  of  the  vessel  itself,  in  tlii'  condition  and  at  the 
time  when  they  were  taken  from  the  schooner  by 
the  Tnited  States,  and  of  l.STfi  sealskins  at  the  price 
rulinii"  in  the  market  at  N'ictoria  at  the  time  when  the 
the  natural  course  of  events,  have 


vesscd  won 


Id. 


m 


returned  to  that  port  in  1S87. 


!'■ 


the  triumph. 
Claim  N...   12. 


IS 


Tilt'   stillcliiflit  nt'  flic   cliiilli  lit'  till'   (>\\  iicrs  of  tl... 

vessel,  liled  lit  N'icforiii,  sets  uiit  tlie  (le|»!irtlin'  of  the 

Tiiinii/ili   lor   Hei'lii;^'  Sen,  tlie  w  iirniiij:'  ;;iveii   l»y  tlie 

revenue  cutter  lliilimil  Itiisl,,  jiiiil  iillc;;('s:   "Tliiit   in 

c(Hisc(|iiciicc  lit'  tlie  illcjiiil  liciiriliii^i',  sciirdiiii;:',  Wiirii- 

iii;^'.  iinil  tlirciits  of  sei/.iirc,  iiiinle  ii.se  of  liy  tlic  coiii- 

riiMuliiiKM,  iiuiikI,.).  nt'  tlie  sjiid  cutter,  the  iiiiistcr  of  the  'I'liniiipli 
cliiim     Nil.     I         ,  I  I  •      •    I       I    I  -til-         I.'       •' 

12.  (iliiiiitli)iiiil  Ins  nitniilril  rai/iif/c  nilu  hrrni;/  r^a. 

'rile  cross-cNiiiiiiuiitioii  of  scNcr.il  witnesses,  testifv- 
iii;:'  liefore  tlic  ciise  of  tlic  TiiiiDijili  Uiis  o|ieiic<l, 
(le\('lo|)cil  tlie  fiict  tliJit  tills  vessel  liiiil  iiecii  sjnlited 
ill  tlie  Merin^-  Sen  iifter  tlie  <lii\'  U|ion  ■-vliicli  she 
(•liiiuieil  to  liiive  jiliiliulolieil  her  v<     ■"•( 

'I'lie  lirst  witness  sworn  on  hchiilf  oi  the  cliiiniiuits, 

iiiid  the  oiilv  witness ^iviiiji'  testimony  liciirii:;;' ilirectly 

upon  the  occurrences  nt  the  time  of  the  wiirninji',  wiis 

lleriiiiin  Smith,      lie  stilted   thiit  he  wiis  unite  of  tlu; 

I{.,  l;i'.i(i,  line  vessel   duriiij;'  her  voyii^^'c  in    ISST:   tliiit   tiie  ciiptaiu 

^i^y';;'*'^' wiis  dead,  and  tiiiit  hi-  iiad  no  io^'  of  the  voya^io. 

K.,  t9i»7,liiio       I'he    'J'l  ill  III /ill     left    N'ictoria    for    her     voyii<i'e    to 

io.ii.'.'        Heriii^Sea  "iihoiit  the  L'dth  or  -Jlst  of  .May."     She 

carried   four    canoes   and   a    crew    of  eiji'ht    Indians. 

R.,  i;w7,  line  Mefore  enteriiiji'  Iieriii<i'  Sea  f)'2  or  'tA  seal   skins  were 

''•  taken. 

On  the  4tli  of  August,  while  lyin;''  hocalmed  at  the 
eiitriince  to  rniinak  I'ass,  at  8  o'clock  in  the  iiiorniii<>', 
she  was  l)oa>''h'd  l»y  an  oilicer  from  the  United  States 
'•>{)'' ''  '""revenue  cutter  ilicliinil  liuxli,  who  e.xamined  the  ves- 
sel, returned  to  the  cutter,  whereupon  Captain  Shep- 


■KW 


THE   TKllIMl'H. 


409 


anl,  (•omiii!iii(liiiji'  tlm  Itiisli,  liiiilcil  the  'I'limiiiili  iiiul 
wiiriicil  licr  not  to  enter  lieiin;;'  Seii. 

The    ciiiitain  of   the  'ii'iiimiili,    tlie   niiite,  niwl   tlie 
IiMhiins,  Sniitli  siiys,  tiilked   over   tlie  mutter  of  eoii- 
tinninj:' or  iil»iin(loiiiii;;'  the  voviijie.  the  resnh   l)ein<i' u,,  iitox,  line 
thiit  the  ("iiitnin  yiive  Sniitli  to    nnMei'stJiml  "tlifit  he 
tlionjiht  it  wonlil  Ix'hest  to  ;;•(»  on  some  (hlforent  seal- 


in, 


The  mate  says  "lie  was  eomiieUeil  to  enter  Uenn;^' 
Sea  l»eeause  of  tlie  ji'ale    that    s|iran;^'    up  that   nij^ht, 
an<l    we  were  so  close  inshore  that    we  either  hail  to '*•>  l-'^^' '"'" 
ji'o  on  the  roeks  or  rnn  hefore  the  ;>'ale." 

(i.  r>nt.  US  a  niattpr  of  fact,  tlie  vessel  eiitcrcd   ISeriiifj' 
Sea? 

A.  Yes,  sir. 

Q.  And,  as  you  miderstood  it,  she  made  in  what  direction? 

A.    Wcsli'fly. 

The   hmitin^i'  hoats  of  the  vessel  were  lowereil  (.n ''"■.  i""') '''>« 
the  r»th  (lay  of  An^^iist,  the  day  after  the    waniin;:', 
when  1!)  seals  were  taken,  ami  on  the  follow  in;.;' days 
thereafter,  with  the  residts  stated: 

AuLinst  Nth,  !»  seals;  !)tli,  42:  lOtli,  ;}4:  11th,  33: 
12tli,'2:):  13tli,  3-J:  14th,  24:  l.'ith,  34:  Kith.  .'{; 
17th,  3.'):  ISth,  2:  l'.»th,  IS;  2(»tli,  27:  2lst,  4:  22d, 
14:  23d,  3.".:  24th,  l.'J;  2:)th,  33. 

The    'I'liiiiHiili,   therefore,   entered    IJerin^i'  Sea   the 
iii^iiit  of  Aii;;iist  4,   and  the  next    day    commem'ed 
hunting-,  and  eontiniiecl  withont  interrnjition,  save  byK.,  uoi,  line 
the  weather,  nntil  the  26th  of  that  month. 

What  elaini  for  dama;;es  this  little  ves.sel  of  1") 
tons,  which,  according'  to  the  mate,  hunted  more  daysR.,  laiUi,  line 
wliile  in  the  sea  than  any  vessel  a  detailed  account  "' 
of  whose  voya^i'e  is  <iiveu  in  the  record,  and  which 
remained  in  the  sea  until  the  2<!th  of  Au^i'ust,  can 
have  a^iiiinst  the  (M)vernment  of  the  United  States, 
that  (Jovernment  can  not  conceive. 

The   mate.    Smith,   makes  some   va^-ue   assertions 
about  bein;--  off  the  sealing'  <4Tounds,but  his  testimony 
sliould  be  scrutinized  very  carefully  in  the  light  of 
B  s 51i 


'if 


k'^ 


\W 


410 


THE   TKIIMPH. 


i 


the  statciiu'iit  of  tliis  claiin,  which  j>ives  the  intnrniii- 
t'wn  that  the  intention  of  the  chiiinants  was  t(»  estab- 
lish tlie  fact  that  their  vessel  <li<l  not  enter  Herinn'  Sea. 
The  testimony  l)earin;.>'  upon  the  location  and  niovc- 
uients  of  this  \ess('l  between  Aujiust  4  and  August 
2(!  comhisively  estal)lishes  that  she  hinited  continu- 
ously durinji'  that  period, sailinj>' westerly  between  tlie 
northward  of  luiniak  Pass  and  Four  -Mountain  Pass, 
K.,  list),  liii..  taking' a  course  far  enough  to  the  northward  so  that 
'*•  lioifoslof  Volcan(»  was  over  50  miles  to  the  south. 

R..  1402,  line      <,>.  Wc  wci'c  tulkiiif;'  about  tliis  stdriii.     WIumi  tliis  storm 
39.  \v;is  l)lo\viii';-  you  into  l>("in}>'  Sea,  alter  you  {jot  tluouijli 

riiiinak    I'ass,  did  you  chaujjc  your  cour.so  to  no  to   the 
westward  ? 

A.  So  I'ar  as  I  can  rvcoUwt.  out-  roitrxi'  irosulirai/x  ircxtovli/ 
alter  we  went  tlnoufjii  the  liiiuiak  Pass. 

K.,  lioi.'.  liiiu      The  vessel  then  hunted  for  tweut\-one  days,  durin^' 
"' ■  which  time  she  could  covei'lxit  a  small  distance,  as  a 

vessel  is  luiable  to  sail  fai"  while  liei'  canoes  ai'e  out. 

K..  no;!,  line     <i*.   Mow  many  iiillt's  of  ground  a  day  will  canoes  cover  in 
-.  an  ordinary  sealinj;-  day  while  .sealinfjJ 

A.  Twelve  to  l.T  miles. 

(}.  .\nd  every  day  that  the  canoes  lowered  oil' your  vessel 
the  vessel  would  };o  about  IL*  miles.' 
A.   Ves. 
*'■•.,'«'•;!:'""'"     ^i-  -^'1''  voii  went  out  of  Four  .Mountain  I'ass? 

i).  And  you  tliink  your  eoiu'se  was  always  westward.' 

A.  Aliriti/s  icdili'ilii.   iriiiil  mill  iri'iilhir  pirnutiiiiij. 

i).  Vvniu  I'nimak  I'ass  ? 

A.  Fniiii  riiiiiKik  I'asK. 

This  witness  was  examined  on  bcdialf  of  the  claim 
of  the  .iiirl: 

R.,  1481),  litii-     ().  And  you  were  in  Hering  Sea  in  1S87,  I  believe? 
6-  A.  Ves.  sir. 

if.  V<»n  cruised  southeast  of  the  Islands  in  l.SSS,  and  you 
cruised  in  the  vicanity  of  the  Mogoslol'  X'olcano  in  ISST? 
A.  How  near  do  you  call  the  vicinity  ? 
(}.  Well,  about  '>0  miles  to  the  northward. 
A.  Oil.  no;  it  was  further  otV  than  that. 

'i'lie  witness  apparently  remembered  that  his  testi- 


m 


'  .Si 
if 

■  i( 


THE   TRIUMPH. 


411 


\(t  nil'   Muri  ll\^  ill  II     iiiun-    iii.iii  >;"   iiiiM-^    iiiMii     1  foj^i  p.-nii 
\'(>l('llllO. 

Ill  tlic  iitt('iu|)t  ot"  tlic  witness  to  ;ivoiil  tlic  clirrt  of 
this  ti'stiiMouv,  lie  siiid  tliiit  lie  <li(!  not  sciil  to  (lie 
iiortliwiinl  ot'  Honosiot'  ill  lSS7.  liiit  to  thf  wcstwjinl. 
When  roni]i;ireii  with  his  stiiteiiieiit  thnt  the  ho;its  ot' 
the  TiliiiHiili  were  lowereil  on  tlie  next  ihiy  iit'ter 
eiiterin;L:'  riiinuik  I'dss  find  Itei'ore  tiie  \  essel  h;iii  pro- 
eeeih'.il  to  the  westwiinj,  iiiid  tluit  therent'ter  hnntinu' 
Wiis  fiiri'ieil  on  tor  w  period  of  idioiit  tweiitx'  d;iys, 
this  witness  is  ronvicted  either  of  (h'lise  i^iiioriiiice  iis 

*-..     ^1...      I.  .J. lit-!.  .11      .  .f'      lii^'      \-i>^^i.l      .mil     tint     I  I'i  .1  If  I'l"!  1  il  I  \-      ill 


412 


THE  TRIUMPH. 


Ar<>unKM»t  as  l)eann<>-  iijxm  the  locality  wliero  seals 
are  t'ouiul  in  Heriii<>'  Sea,  and  trace  the  v(>ya«>e  of 
the  Trhnn}>h.  She  sailed  directly  over  the  so-called 
sea]in<>'  <>T(»nnds. 

That  the  Triumfih,  which  sealo<l  some  21  davs  ont 
of  a  |)ossil)le  28,  between  IGA^"  80'  an,l  G!)°,  and 
54°  'M)'  and  0;")°,  did  not  sustain  any  daina<>es  l)y 
reason  of  the  warnin<>'  <>iven  by  the  Tnited  Siates 
revenue  vwWw  liiihatd  lUisli  is  abundantly  established. 
If  the  TrUiitipli  had  been  deprived  of  an  oi)]»or- 
tunitv  to  take  seals  the  results  secured  by  her  hunters 
inifi'lit  certainlv  l)e  expected  to  establish  the  fact. 
Arj;.  ou  be-  'PIh'  Arjiuiuent  on  behalf  of  (treat  liritain  states 
(jreat, Brit- that  the  Mfu/f  Ellcii  is  the  vessel  whicli  should  be 
aiii.p.79.  iii;„1p  ij^^.  of  as  a  basis  for  calculatint>'  the  catch  of 
other  schooners.  Tlie  Maiji  Ellen  made  an  averaue 
catch  of  (i.74  .seals  per  day  from  tlie  Ath  of  Au^^ust. 
The  statenuMit  is  made  in  the  Ar<iunient  (|).  79,  line 
'.•)  that  boats  have  one-  hird  more  workiny  jiowcr 
than  canoes,  which  would  make  the  averajic  daily 
catch  of  the  Mm  1/  Ellrn,  had  -slie  used  canoes,  o. (),")."). 
The  'I'riiiiii/ili  carried  four  canoes,  makinjz' her  average 
dailv  catch  for  all  the  hunters  2(1.22  skins,  which, 
nudtii)lied  bv  21.  the  nuudierof  days  she  hunted,  her 
total  catch  would  l)c  424.      Hut  as  a  matter  of  fact  the 

1{.,11(K),  lino  ,,,   .  I    ^       1      1 ..  .  1     1  •  1       •         ...1     ..  •      I 

43.  I rnini/)li  took  4.>ip  seal  skms  (liUMny  that  periotl. 

This  calculation,  made  upon  the  basis  which  is  the 
most  ailvaiita;^('ous  that  could  possibly  be  obtaine(l 
from  the  U'ecord,  fails  to  establish  the  claim  that  the 
'rriimi/ih  was  deprived  of  the  opportunity  to  take  seals 
l»v  reason  of  not  veiiturini;'  upon  the  "best  sealiniz' 
•"•rounds." 

Some  vaji'ue  testimony  was  adducecl,  l)eariiiji-  upon 
the  dui'ation  of  the  \«>\a;i'e  of  this  small  \('ssel.  lait 
the  rniteil  Srat<'s  rest  upon  the  ^^eneral  testimony 
reji'ardin;^'  the  close  of  the  season  in  Ht'riu};  Sea,  and 
)»('lie\('  that  the  vn\aL;e  of  the  Trliiiiiiih  was  com- 
pleted on  the  2()th  dav  of  .Vuiiust,  haviuii'  continuecl 


THE   TRIUMPH. 


413 


without    int<'iTU])tion   and    witliout   ivt'crenct'  to  the 
warninji"  given  by  the  cutter  liiclnud  Hush. 

TIh'  nature  of  the  testimony  (U'pended  upon  to 
estaldish  a  chiini  for  a  season  extending  to  the  l")tli 
day  of  Sei)teinber  removes  all  doubt,  if  any  exists, 
as  to  the  (luration  of  the  voyage. 

Q.  When  yoii  left  for  the  voyajje  had  you  any  coiiver.satioii  K.,  1400,  lino 
with  tlie  owner  of  the  vessel  as  to  tlie  time  that  you  were  to     '•'• 
reuuiiu  in  lJerinj>'  Sea  in  1887? 

A.  Well,  yes;  several  conversations  on  that  snbjeet. 

Q.  To  whatertect? 

A.  That  from  hearsay,  from  those  who  had  been  to  Hering 
Sea  before,  that  we  coiihl  make  a  good  catch  the  latter  part 
of  August  and  the  beginning  of  September.  At  that  time  a 
fine  s])ell  of  weather  is  expected,  and  I  liad  a  thorough  under- 
standing with  .Mr.  I'.yrns.  myself  being  on  a  lay,  that  the 
vessel  would  be  provisioned  to  sucii  an  extent  of  time  that  it 
would  enable  us  to  stay  until  we  were  driven  out  by  the 
we  -flier  m-  conid  not  lind  anv  nu)re  seals. 

if.  Had  you  been  in  Hering  Sea  before  that  time?  U.,  llo;i,  lino 

A.  Xo.  sir. 

(}.  Had  tiie  cai»tain? 

A.  Xo,  sir. 

There  is  no  testimony  in  the  record  niion  which  to 
l)ase  the  claims  for  "proportion  of  Warren's  expenses 
to  Ottawa,  >^1.")2,"'  and  "expensi'  of  owiu-r, >;•_'< lit,"  and 
"Belvea's  charges,  >>"J.')0,"  and  no  testimony  is  citeil 
on  behalf  of  (ireat  Uritain. 

'The  Government  of  the  TnittMl  States  contends  that 
the  Triiiiiipli  continuetl  her  voyage  after  the  warning 
withont  interrii|)tion,  seciireil  an  mmsnally  large 
catch,  and  having  hnnte(l  the  full  season,  sailed 
for  Victoria,  where  her  catch  was  sold,  and  that  no 
damage  resulted  to  the  owners  from  the  warning 
"•iven  bv  the  cutter. 


ii. 


iifl: 


f 


E.,  1339, 
41. 


K..  in  10. 

1{.,  VXV.t. 
■M. 


U..  i:u;i. 
o2. 

R.,  133S. 
10. 

E..  1310. 
61. 


R.,  1310, 


the  juanita. 
Claim  No.  1.'). 

'"'"  Tlic  Jinniitd  entered  lieriii^'  Sen  on  tlie  '-M  <l;iv  of 
.Fulv,  1 8S!I,  iind  conmienceil  lier  scjilin^i'  o])eriitions  on 
llie'lOtli  of  .Inly.      She  \vii>  seized  on  tlie  31st  of  the 

'•""siiiiie  nioiitli  l»v  ( 'iiptiiin  Shepiird,  of  tlie  riiited  Stiite.s 
reveiuie-ciitter  llhlninl  lliisli. 

linr  'I'll,,  ci'ew  consisted  of  14  Indians,  the  Cfiptain,  iiiid 
3  sailors.  Tliere  is  no  (evidence  l)earin,ii'  U|ion  tlie 
niniilter  of  canoes  carried  by  the  Jiidiiild,  hut  the  fair 
|)resiini|)tioii  is  that  she  had  7.  inasiunch  as  she  car- 

'"""ried  14  Indians.  'I'lie  stiTU  Itoat  was  not  used  for 
Imntinii'  to  anv  extent. 

line  'p|„.  ciitt,.].  seized  (MO  seal  skins  and  the  spears  of 
the  Indians. 

'""'  There  is  no  evidence  that  an\'  seals  were  taken 
after  the  3lst  dav  of  ,lul\'  or  that  the  boats  were 
low(>red. 

('aptaiii  ("larke.  also  one  of  the  owners,  testilied: 

line     (^),  I'll  to  wliiit  tinie  (li<l  you  intend  to  stay  in  tlie  sea? 

A.  We  intended  to  stay  in  the  sea  up  to  the  l)e<j;iiniinfi;  of 
Septenilier. 

<i).  Had  you  arranged  tliat  before  you  left  Victoria  ? 

A.  To  the  best  of  my  belief  at  the  prestiiit  time,  and  what 
ti'ansi)ired  afterwards,  1  believe  the  lOth  Sei)tember  was  the 
day  mentioned  by  .Mr.  Hail,  lie  said  that  we  could  stay 
loiijrer.  I  think  that  he  had  had  information  fiom  someone 
who  had  been  there  that  .seals  had  been  canyht  in  September, 
and  that  the  season  was  not  actuiilly  (dosed. 

The  answer  of  the  witness  not  beinj;'  satisfactory, 
he  was  |»res.sed,  oiirlirect  examination,  for  the  purpo.se 

m 


^pp 


THE   JUANITA. 

ot"  ol)tiiiniiiji'  iin  nnswc'r  jiiviiiji-  a  Inter  (Into  for  the 
closinj^'  of  the  se!iliii<>-  season: 

(}.  And  it  was  your  intention  to  stay  until  the  beginning  H. 
of  8ei)teniber  that  year — up  to  about  the  14tli  ? 
A.  I  tliink  tiiat  the  lOth  was  the  (hvy  mentioned. 

The  only  otiier  testimoiiv  in  tlie  IJeccn'd  hearinji' 
upon  the  proposed  (hn'ati<»n  of  the  vo\  aj:e  of  the 
JiKiiiifd  was  <;iven  hy  liichard  llall,  one  of  the 
owners: 

Q.  What  length  of  voyage  was  yoin-  vessel  fitted  out  for  H, 
when  she  went  to  liering  Sea? 

A.  When  the  captain  left  I  told  him  to  stay  on  until  some 
time  in  Sei)tember.     I  do  not  remember  exactly  what  date. 

Q.  Had  you  infornnition  that  there  was  any  use  staying 
until  Septemlier ' 

A.  Yes;  1  was  told  by  some  one  in  tlie  sealing  business 
that  there  was  sealing  to  be  done  in  8epteMd)er. 

().  And  you  made  up  your  mind  to  try  that? 

.\.  y<s ;  f  toltl  Ihf  cdpftdn  to  stdi/ in  till  Septt'iiilK'r,  if  pos- 
sihie. 

On  cross-examination  this  witness  testitied: 

(}.  Who  told  you  that  they  got  seals  in  Se|)teml)ei'  in  Iter-  k 
ing  Sea? 

A.  I  am  not  certain,  but  I  think  tiiat  it  was  Victor  .Jacob- 
sen,  the  eaiitain  of  the  Miiniii: 

Q.  Were  ycm  tohl  that  they  caught  seals  in  September  the 
vear  before— ISSS; 

A.  It  was  in  the  lall  of  1S,SS  that  he  told  nu'.  Ue  told  me 
to  have  th"  schooner  stay  in  September,  as  there  had  been 
sealing  in  Septend)er. 

if.  Did  he  sav  tiiat  they  had  been  sealing  in  SejUember  in 
188S  ? 

A.  I  will  not  say  that,  but  lie  advised  me  to  have  the 
schooner  stay  in  in  September. 

And  njiiiin: 

Q.  Von  outfitted,  you  say,  until  the  middle  of  Sejitember? '' 
A.   I  will  not  say  that  1  told  him  to  stay  until  any  certain 
date  in  September.     1  think  that  it  would  be  a!»ont  the  Ktth 
of  September  that  he  would  be  supposed  to  leave  there. 

I'po"  this  testimony  tlie  elaim  is  Imsed  that  the 
sealinn'  vovaji'e  of  the  .litdiiifn  would  have  eiideil  on 
the   \h\\\   da\-  of  Septeinher.      The   testimony  is  that 


416 


,  llitl,  Hue 
17. 


,  id 


,  ]:)l!l,  line 
L'li. 


„  i:i.'0,  liuo 

li. 


i:i.il.  line 


41(1 


1(.,  U47, 
46. 


R..  1119,  liuc 


THE   .11- ANITA. 

of  two  owners,  it  is  hjiscd  ii])oii  »  vjifiiic  niiiior 
tlijit  one  vessel  liad  taken  seals  in  8ej)tenil)er  in  the 
year  18SS,  and  it  was  eoneluded  that  it  ini«iiit  he 
|irolital)le  to  attempt  lo  |)rolon<>'  the  voya've  of  t)ie 
Jiiiiiiild  nntil  the  loth  of  S(>])teinl»er. 

It  is,  of  eonrse,  to  the  interest  of  these  elainiants 
to  extend  tlie  sealin<;'  season  as  far  as  ])ossil)le  into 
Se])tend)er,  hut  this  testimony  certainly  will  not  war- 
lant  (he  findinj;'  that  the  time  dnrin;;'  whieh  they  were 
dejirived  of  the  use  of  their  schooner  extended  until 
the  ir)th  day  of  Septeiidier. 

The  llijih  ( 'ommissioners  have  more  authentic 
testimoUN  of  the  hasis  of  the  runioi'  u|ion  which  .Mr. 
llall  l)ased  his  testimony  reyardinji'  the  |»i'o|iosal  to 
remain  in  lierin^-  Sea  until  the  Kith  of  Septemher 
than  Mr.  Hall  hims.-lf  ha.l. 

('a))t.  \  ictor  .lacol)sen,  who  is  also  a  claimant,  was 
examined  iclativ<'  to  the  voxniic  of  the  MiniiiUtUi 
Cliirf  in  ISSS: 

<j>.  I  am  talkiiiji  abiiiit  wliether  you  are  certain  you  limited 
after  tlie  .'id  oC  September? 

A.  We  went  out  tliroujili  the  Pass,  but  we  Iiuuted  to  tlie 
last.  We  lel't  tlie  .sealing  jiidiiiid  on  tlie  3d  of  September  in 
tlie  sea,  and  went  and  lilied  water,  and  we  lowered  and 
sealed  after  we  tilled  water  and  come  out,  the  same  day  we 
come  out  or  the  day  before. 

ii.  Vou  iiractically  abandoned  your  huntinjj;'  then  on  the 
.'{(1  of  Seiitember .' 

A.  Out  in  the  sea.  I  suiiptise.  We  come  and  tilled  water 
and  then  we  hunted  after  that. 

<i>.  Vou  lowered  in  the  I'asa. 

A.  Y'es;  lowered  in.side  the  Tass. 

'i'his  is  the  only  sealing  schooner  that  hunted  in 
erinji'  Sea  into  Soptemher  of  the  year  iSSS. 

The  Jnini'ilii  was  in  Heriiifji'  Sea  in  the  year  IHSS, 
and  terminated  her  voya<;e  Aiijiiist  "JO. 

The  <i'eneral  testimony  relatin^i'  to  the  close  of  the 
sealinji'  .season  lixinji'  it  as  between  the  20th  and  "iotli 
of  Auji'iist,  and  the  t'onvincin<>-  character  of  that  testi- 


f:i 


THE   JUANITA. 


417 


moiiy  is  suHicii-nt  to  oiit\\x'if;Ii  the  vayue  tostiiuony 
of  these  two  owners  oiveii  in  tlieir  own  Ije'ialt". 

The  JiKiiiitii  was  ])nilt  in  l.STo.     Her  jiToss  tonnage  ^s^^'''  ""® 
was  40.21. 

The  fact  that  the  Jii(iiiit<i  entereil  Hering  Sea  on 
tlie  2(1  day  oi.luly  and  carricid  on,  without  interrup- 
tion, her  hunting'  o|)eratious  until  the  31st  of  .lulv, 
taking  in  the  meantime  619  seal  skins  for  whicli,  even 
at  the  extortionate  vahie  of  ^11  ]»er  skin,  !^G,842  is 
ehumed,  wlieii  compared  witli  the  elaim  made  for 
2,102  skins,  which  wouUl  have  been  taken  during 
tlie  bahnice  of  the  season,  and  for  which  ^^23,122  is 
clainii'd,  is  convin<'ing  evi(U'nce  of  the  inju.stice  of 
making  use  of  a  cah'uhition  of  the  pmspective  catch 
of  seals  as  a  l)asis  for  estimating  the  damages  suffered 
hv  these  vessels  whose  voyages  were  interrupted. 

The  demand  for  >^23,12'J  for  the  use  of  a  vessel  of 
40  tons  for  a  jjcriod  of  from  twenty  to  twenty-five 
days  is  too  grossly  extortionate  to  lie  consiiU'red  l»y 
a  tril)unal  of  justice. 

The  ves.sel  was  worth  about  ^:.',00O,  and  that  she 
could  earn  over  five  and  one-half  limes  lu-r  vahu' 
within  twentv  or  twenty-live  days,  and  at  the  rate  of 
over  ^'ioOjOOO  a  year,  is  so  impossil>le  that  justice  will 
not  ))ermit  of  the  use  of  any  such  l)asis  for  estimat- 
iu"'  the  future  earnings  of  this  vi-ssel. 

This  vessel  is  entitled  to  recover  from  the  (ioveru- 
ment  of  the  I'nited  States  her  charter  value  from  the 
31st  day  of  duly  to  the  -JOth  t»r  -ioth  of  August, 
measured  bv  the  rule  of  law  stated  in  the  ArgunuMit 
relative  to  tlu'  measure  <»f  damages  in  cases  of  partial 
loss,  in  addition  to  the  value  (»f  fill)  seal  skins  at  the 
market  })rice  obtaining  at  Victoria  at  the  time  the 
skins  woidd  have  been  offered  for  sale. 
u  s 53 


f    ! 


I 


W'- 

1 

l'=il 


K.,  707,  lines 
12,1,2S;  K'., 
i:>l):t.  line 
58. 


U..  irilll,  lino 
3. 


II.,  1505,  linc8 
10.  47. 

ArKiiincnt  im 
I)cli:il  I'  ol' 
Gifiit  lirit- 
uin.  ]i.  IT: 
K.,  1571, 
lin<>  II. 


the  pathfinder. 
Claim  No.  14. 

Till'  I'dflijiiidcr  I'litertMl  lk'riii<i'  Sen  tor  a  sealin}>' 
v(ivii<!('  nil  tlu'  1st  (lay  <»f  .Inly,  IcSiSJI.  81k'  carried 
live  liuiitiiiji-  boats,  and  a  crew  of  nineteen  or  twenty 
white  men.  The  United  States  revenue  cutter  Jlicli- 
(inl  Riisli  seized  the  I'dflijiiidir  on  the  2!)th  (hiy  of 
duly,  at  11  o'chu'k  in  tiie  inorninji'.  The  .seizin<>(»lH- 
cer  (lirecto<l  the  removal  to  the  cutter  of  S;');')  seal 
skins,  7  .shotfiuns,  4  Winchester  rilles,  and  some  am- 
munition of  practically  no  value. 

William  ^lunsie  testified  that  the  j^iins  ()r<;inally 
cost  J^o")  each,  and  the  rifles  >>■_>(!  each. 

In  the  arjiument  on  l)ehalf  <if  (Jreat  Hritaiu  this 
statement  is  made: 


III  the  case  of  tlie  I'atlijindu;  tlie  schooner  was  owiietl  by 
and  registered  in  the  name  of  a  liritish  subject,  but  one 
lieclitei,  wlio  wiis  a  nutive  born  citizen  of  the  United  States, 
had  iinrcha.sed  a  half  interest  in  the  iirolits  of  the  sealing 
voyages  of  the  vessel. 

The  United  States  accepts  the  admission,  made  nii 
behalf  of  (ireat  Hritaiu,  that  .\ndrew  J.  IVchtel  was 
eijually  interested  with  William  .Miinsie  in  the  venture 
(if  the"  I'iiflijiiiilir  in  the  year  ISSII,  but  assert  that 
K.^_155(>.  line  y,„i,.j.^y  ]  |{,.(.litel  Was  also  an  owner  of  one-half  of 
the  vessel,  resting;'  this  (daim  iipoii  the  testimony  of 
AVilliam  .Muiisie. 

The  traiL-actioii  |iertaininji'  to  the  I'litlt/iiiiltr  was  in 
all  its  detail   exactly  the  counteriiart  of  the  transac- 
tion between   .Muiisie  and  Hechtel  with   reference  to 
Ante, 3S7.      f|„.  ('(iiitlrhd.  and  at  another  place  in  this  arjiument 
list 


THE    PATHFINDER. 


419 


the  husiiK'ss  relations  oxistiiijj;-  VK'twceii  tlit'so  twonu'U 
hiis  been  ilisctissed  at  lon^tli,  and  a  ri'|)t'titioii  tor  tlii' 
purpose  ot"  the  chiim  of  the  I'af/ijiiitlvr  is  deeiiied 
ximu'ccssarv. 

The  chum  ot"  the  /'utlijimlcr  l)eiu<.;'  eiitirely  tor  tlie 
vahie  of  seal  skins  actually  taken,  and  for  the  use  of 
the  vessel  between  the  time  that  she  was  seized  in 
lierinji'  Sea  and  the  close  of  the  sealing;'  season,  no 
claim  Ijeinji'  niach'  for  the  vessel  itself,  even  if  Hecli- 
tel  was  not  a  half  owner  of  the  bottom  of  the  ship, 
his  interest  is  an  ecjual  one  with  William  Munsie,  and 
he  is  a  half  owner  of  the  claim  against  the  (lovern- 
meut  of  the  United  States. 

In  this  case,  as  in  all  other  cases  wherein  an  Ameri- 
can (Mtizen  is  interested  as  a  claimant,  the  position  of 
the  (ioverinneni  of  the  United  States  is  that  n<»  citi- 
zen owinji'  alleji'iance  to  it  can  recover  dama^'es  l)efore 
this  lliji'li  Connnission  for  any  injury  sustained  by 
that  citizen  while  vielatinji'  the  sovereiji'ii  rights  and 
the  numicipal  laws  of  his  t»wn  country. 

William  Munsie,  testifvin<>'  in  his  own  Itehalf,  stated: 

Q.  Hut  you  did  uot  give  any  instructious  to  your  captain  b,,  1505,  line 
as  to  how  long  she  would  .stay  there '!  16. 

A.  I  did  not;  I  left  it  toliisown  discretion  to  stay  as  long 
as  he  could  while  the  weather  permitted. 

And  on  cross-examination  this  witness  said: 

Q.  Did  the  /V(//(_/(H(?(t  ever  .seal  in  the  Bering  Sea  in  the  R..  15,51,  line 
niontli  of  September  prior  to  the  year  when  she  was  warned     l^- 
or  seized? 

A.  1  do  not  know. 

Q.  By  your  direct  testimony,  when  you  referred  to  October,  r,,  1553,  line 
do  you  mean  to  be  understood  that  there  were  any  instruc     57. 
tions,  or  contemplation  of  any,  at  the  time  of  the  outtit  of 
the  I'titlitinili'f  that  she  was  to  remain  or  seal  in  the  sea  in 
October'? 

A.  No,  sir. 

Q,  Or  that  she  was  to  remain  or  seal  in  the  sea  in  Sep- 
tember ? 

A.  No;  it  was  left  to  the  discretion  of  the  captain. 


420 


THE   PATHFINDER. 


I    in 


rl 


t '' 


R.,  1551,  line     (^,  Did  that  iiuilndo  in  yomconteinplation  aealing  b»'yoml 
^*''  tlie  Ist  ol'  Sopteiiiber? 

A.  No:  I  would  |not|  miy  that  it  coiiteiiiplate*!  MoaliiiK 
beyond  that  time.  It  t-ontemplated  Healing  as  long  as  lie 
could  remain  in  the  sea  for  weather  and  provisions,  V«u 
will  understand  that  we  usually  ])ut  provisions  on  board  in 
case  they  met  with  bad  weather  coming  home.  They  are  not 
going  to  starve. 

This  testimony  hwirs  upon  nil  the  testimony 
ii<l(luce<lonl)ehnlt'of  (Jreitt  Hritiiin  of  n  simihu'  nnture. 
When  ii  witness  is  qnestioned  Jis  to  the  time  that  he 
onttittcfl  a  hoat  to  remain  in  lierinj^'  Sea,  the  answer 
snstains  altont  the  same  relation  to  tlie  hMijitli  of  the 
sealin<4'  season  in  Merinji'  Sea  as  an  answer  ;iiven  to  a 
qnestion  rehitive  to  the  nnmlter  of  seals  tliat  a  captain 
believed  he  was  j^oinji'  to  take  in  the  Heriiifi'Sea  hears 
to  the  aetual  cateh  that  wonM  havelu'cn  made. 

The  testimony  of  this  witness  estal)lishe(l  the  fact 
that  to  Captain  O'l.eary  was  intrnsted  the  decision  as 
to  when  the  I'dthjiinlir  should  discontimu'  her  hunting;' 
voya;:'!'  in  the  Herinj;'  Sea. 

('aptain  O'Leary  was  examinet]  on  l)ehalf  of  the 
claimant: 

<i.  In  ls,S!>  for  what  time  di<l  yon  outfit? 

A.  Intil  about  the  1st  of  >Septembei'.  I  jienerally  allowed 
to  leave  IJering  Sea  about  the  1st  of  September  or  the  last 
of  August. 

<i.  Did  you  ever  fit  (mt  for  a  later  seasiai  in  Bering  Sen? 

A.  Not  at  that  time. 

Cross-'  .iiniiieil  relative  to  a  vova^^'e  in  the  vear 
1S9(>.  '.e  said: 

<  .  What  time  did  you  leave  that  year.' 

A,  1  left  there  some  time  toward  the  end  of  August. 

(i).  The  fact  is  that  that  season  you  hunted  in  the  .sea 
about  the  nsual  time  ? 

A.  Yes. 

Q.  How  late  in  August  did  you  leave? 

A.  About  the  l.'.'»th  of  August,  as  far  as  I  can  remember. 

Q.  Yon  never  were  in  there  later  than  the  2.">th  of  August? 

A.  I  do  not  think  so.  That  was  the  last  year  I  was  in  the 
])ering  Sea. 


R..  773,  line 
11. 


R.,  770, 
35. 


line 


THK    PATHFINDER. 


421 


1{.,7()>*,  line 


,,li.,"(W.  liiipl. 


Q.  Tliatwas  tin-  latent  time  you  were  ever  in  Bering  Sea — 
tlie  :J'itli  of  Aiij/unt.' 

A.  Yes;  toward  the  last  days  of  Aufrust  sonieuliere. 

Tliis  witness  tcstitied  tliat  it  todk  five  or  six  davs 
for  the  I'fithjiiidrr  to  reach  Uuimak  Pass  after  she 
heji-an  lier  lioinewanl  voyaj:'*' on  tlie  2!)th  ilay  of  July. 
Takiiiji'  tliese  five  or  six  d  lys  fruiii  tlie  Ist  (hiv  of 
Se|)teinl)er,  when  tlie  witiuss  testified  that  he  had 
calculated  to  leave  the  sea  in  1889,  and  the  date 
of  the  termination  of  the  hnntiny  operations  of  the 
I'dfhjiiiilri-  is  lixeil  at  Anjiiist  2.'). 

The   Piith finder  was  coiistrncted  in   1^79,  and  the  j.;,.  r,,,  ,;  j, 
reyisten'd  tonnaji'e  is  6(1. (>'_*.  <•''"'",  No. 

'I'he  dania<i'e  clainieil  is  for  tlii'  value  of  S.')4  seal  its'.  p^'iTi. 
.skins,  the  jiuns  seized,  and  the  charter  value  of  the 
I'ulhjiiiili  r  fi'<tni  the  28th  day  of  .lul\-  luitil  the  dose 
of  the  sealinji'  season  in  Herin;.;'  Sea.  The  value  of 
r>()  seal  skins,  taken  after  ihe  seizure,  shoidd  lie 
deducted. 

'['here  is  no  evideiu'c  in  the  I'ecord  to  justifv  the 
claim  i'or  "time  and  expeii--"'  of  ownci',  >;2(M»."  and 
n(»  testimony  is  cited  from  die  ivcord  in  the  Ar^^ii- 
ment  on  behalf  of  (Jreat  Hritaiu.  'i'hc  claim  for 
"le<;al  exiieiises.  >>2 "id."  rests  uiion  the  same  liasis  as 
the  claim  for  Uelyea's  fees  in  all  the  case> 

William   ^luusie  testiiicd   reiiardinn'  the   nature  otu.,  139,  nu 
his  aj^'i'cement  with  iJelyea.  ^'''' 

'i'his  vessel  commenced  liuntiuii-  in  the  sea  the  1st 
day  of  dul\',  and  contimie(l  without  inteiTU|itioii  until 
the  nuirnin^itif  the  "jyth  of  duly,  when  she  had  taken 
S,");")  seal  skins,  makinji'  her  n\eraue  catch  durin<i'  that 
time  iU).]  skins  jier  day. 

In  the  Arjiumeitt  Hied  on  behalf  of  Great  Britain, 
a  claim  is  maile  for  2,024  skins  which  would  have 
been  taken  durinji'  the  balance  of  the  sealinji'  season, 
which  would  make,  extending'  the  season  even  to  the 
2.")th  of  Augu.st,  an  average  catch  of  over  (17  skins 
pel"  day. 


■ 


422  THE    PATHFINDER. 

Witliout  relyiiiji'  upon  tlu'  tiict  tluit  tlio  Inw  of  hotli 
yrt'iit  uiitioiis,  jiiul  tlic  di't'isioiis  of  iuti'niiitiouiil  tri- 
buiiiils,  rlciirly  t'stnhlisli  tlint  no  ilaniiifit's  ciin  l)o 
a\viirdo<l  for  imtspoctivt'  catcli  or  jtroiits,  iind  witliout 
rt'frrenc'O  to  the  I'outiiiyi'iicicN  wliicli  oxLst  to  modify 
the  catt-h  of  seals,  this  cakidatiou  dearly  reveals  the 
extortionate  nature  of  the  demands  of  these  claimants. 


THE  BLACK  DIAMOND  AND  THE  LILY. 

Claims  Xos.  1")  and  Id. 

The  Illarh  Diontoinl  ciitcnMl  Hcriii^i  Sen  Jiilv  (!, 
18S!I.  Slic  wiis  oiitfittiMl  with  ten  ciiiincs.  Sciiliii''' 
oiK-ratioiis  were  »'<iiiiiii»'ii('('(l  (in  the  lOtli  diiv  ut' ,lul\ . 
'I  he  st('imishi|)  Iticlitinl  A'/rsA,  in  the  .■<(M\  ice  ut'  the 
United  Stiite.><,  seized  the  ve.ssel  on  the  lltli(hi\-  of 
.Inly,  id)(>nt  12  o'cluek.  Scventy-.six  .^cid  skins,  one 
rifle,  jnid  the  s|tears<tt'  the  Indi;uis  were  t^kcn  idtuiii'd 
the  entter,  liinded  iit  Sitkii,  prciceeiU'd  ;i<i'iiinst  lt\-  tlie 
(lovcrnnient  <it'  the  United  Stiites.  iind  conih'iiUKMl. 

'I'he  ehiini  is  one  of  pMrtial  hiss,  'I'lic  niciisnre  of 
(hnnaji-es  is  the  ehiirtcr  Vidne  of  tlie  ship  tVoni  tiic  1  Itli 
(h\y  of  .Tnly  to  the  I'Oth  or  -jritli  of  An^inst.  iiiciisnred 
l)y  tlie  rnh'  of  law  state(l  in  another  part  of  thi>  AriiU- 
nient,  and  the  value  of  the  skins  sci/cd. 

The  valne  of  the  skins  taken  after  the  sciznre  shonlil 
be  dednctiMl  from  thi'  charter  \ahie. 

In  estimating;'  the  charter  valne  of  a  vessel  <intlitted 
for  a  .sealing'  voyaj^e  in  Bering-  Si'a,  consideration 
nuist  undonlitedly  iie^iiven  to  the  fact  that  provisions 
were  on  board  to  sustain  the  crew  and  hunters  durin;>' 
the  period.  The  llldr/,-  l)}(iititni<l  was  provided  with 
Indian  Inniters,  and  the  cost  of  sustaining:'  an  Indian 
for  one  motith  is  ^^fi.  Thei'e  were  'JO  Indians  aboard 
and  the  captain  and  mate.  Provisions  were  landed 
at  ("layo(pi(it,  where  Alexander  Fraidi  conducted  a 
tradin<>'  station.  The  value  of  the  provisi<ins  removed 
is  not  stated,  but  what  remained  were  utilized  for 
another  trip. 


I{.,  17(i7, lines 
IJ,  ;w,  in. 


!{.,  1"(>7.  lino 
.">:  li'.,17tW, 

lill(Ni."i;  Kx. 

llli,  (1.  B.; 
Claiiii    Ni). 


Kxliibits,  pp. 
;iHl :  K., 
I'tili,     line 


U.,  17lW,lim'.s 


i;..  ion,  line 
-'.->;  U..8ir:, 
lire  11 

H.,  178(1,  lim- 
2!  I. 


R..  17S1,  line 


123 


■  ■■■' 


m 


424 


THE  BLACK  DIAMOND  AM)  THE  \AL\. 


i;..  i8:;8, 
4;i. 

R.,  1810. 

lilt. 

K.,  ixll, 
15. 


•'"'"      Tlic  /.//// c'littTiMl  Ut'i-iiif;' Si'ii,  .Inly  2,'),  lSS;i.     Slic 
\v;is    si'izcd    hy    the    I'liiti'd    States    rcNCiiiU'    cutter 

hneJUclxiid  Rush  on  the  (Jtli  ilny  ot'  .Viij^iist.     Three  liiiii- 
(h-ed  and   thirty-three   .skins  and  the   hnntini;'  s|iears 

liiu'wcre  taken  h\-  the  cntter.      Tlie  crew  consisted  of  the 
caiitain.  mate,  .'5  wliite  men.  ;nid  2,")  liuhans. 

The  case  ot'  the  chiimant  was  suhmitted  on  the 
allida\it  of  .Morris  .Mo>s.  "tlif  iliili/  rrf/ishrcd  (urm  r." 
and  Jolm  Heilly,  her  captain. 

The  Lilfi  was  onh'i'ed  to  jiroceed  to  Sitka.  Her 
captain  instead  saih-d  for  \  ictoria.  arri\ini:'  at  that 
port  on  the  1st  day  of  Septendu-r,  ISSD,  Tliere  is  no 
e\  ideiice  of  any  catch  of  seals  niaih-  l>\  the  /,/'///  after 
hi'r  seizure. 

Tliis  claim  is  also  one  of  partial  loss,  and  the  claim 
is  foi-  charter  value  of  the  vessel  from  the  (Ith  da\  of 
.Vuuust,  ISSi),  to  tlie  (dose  of  the  seaiiuji'  season,  \n- 
unst  I'll  to  Anii'ust  L*."),  heside  the  \iilne  of  'MVd  seal 
skills  and  the  spears  of  the  Indians. 

The  claim  made  "tor  illejial  l)oardinii,  search,  and 
arrest  of  vessel,  ^■J.iMtll."  iind  the  similar  claim  made 
in  the  case  ot  the  llhicl;  l)iiiiiiiiiiil,v\\\\  not  lie  allowed. 
The  allowance  of  any  dama;.;-es  in  the  nature  ofpuni- 
ti\  I' damauts  ajiiiinst  a  (io\crnment  actinia' in  entire 
li'ood  taith  has  lieeii  disiaissed  at  leiiji'th  in  another 
part  ot'  the  Ari;imient.  The  items,  "i?elyea's  hill, 
>^'1')^K"  "personal  expenses  and  troiilde  of  owner, 
'^■J(K),"  in  these  cases,  are  iili>olutel\  unsupported 
1)\  e\  ideiice.  There  was  no  lestimoUN  of  a  con- 
tinueiit  contract,  even,  with  Mr.  Uelyea  re;^ardinji 
eithi'r  claim,  and  no  e\  ideiice  was  adduced  tending'  to 
show  that  the  ow  iier  or  his  a;^eiit  j;a\('  any  time  or 
expended  an\  money  in  connection  with  either  claim. 
The  riiited  States  assert  that  .\Iexander  l'"rank,  a 
citizen  of  the  I'liiteil  States  ot' America,  and  a  resident 
of  the  city  of  San  Fraiiciso,  wiis  the  owner  of  the 
llliicl:  ItiiniiDiiil  and  the  /.ili/  at  the  time  of  their  seiz- 


THE    ULACK    DIAMOND    AM>    llir,    l,ll,Y. 


lire,  illld  rllllt  11(1  (1; 
Iliiili  ( 'oiiniiissiini 


iiii;ij.:t's  ciiii  lie  iiuni'dcd  liiiii  l(\  tlii^ 


licsc  cliiinis  iirc   |ircsciilc(|  m  the  uiiiiic 


.f  M 


(irri> 


Muss,  "Ihc  fiy'islnid  ii/nifi."  .Mnrris  Moss  ilii'il  Sdliic 
yciU's  jij^n.  No  l-c|il'csciitiiti\ f  ni  liis  cstiltf  w  ;is  |ircs- 
ciit  ;it   \  ictoriii  ns  w  clainiiiiit  Ix'torc  llic  ( '(iniiuission. 


lie    urnhiit'      liruccciliiu 


.1     lii> 


-tillc     ilt     \' 


ictnriil 


i;..  L'ddi.  li 


contain   no   «<''<T('1icc  to  Ins  o\\  iicrsliiji  of  the  clain 
Coiniscl  tr.i' tlic  I'nitcd  States  r('(|ncstcd  ( 


oiinscl  tor  i;..  ism;. 


<ircat    IJritain  to  state  wlioin  tlie\   A. 


Illlie(|    Id    I)c    tlu 


;i. 


owner   of    tile    r>l<i(l,-    hi 
( ifeat  I'ritaiii  reiilied  : 


KiDKiiiii.   and    the   rounsel    lor 


So  far  as  wo  are  oouconied.  we  lind  this  vessel  at  tlie  tiiii 


of  lier  seiziiie  registered  in   tlie  iiiiiiie  of  .Morris  .Mt 
we  elaiiii  for  lier  whoever  iiiav  lie  entitled  to  her; 


eliiiiiiiiij;-  on  behalf  of  (iieat  Hiit: 
thv  rrssi'l  irax  rciiisternl  in  the  iiki 

'Vhr  atlidavit   of  M()iil>    .M 


\\e  are 


ill.  mill  ire  liitn  pnnil  I  lint 
•  III'  MiirriK  .1/(/,v.v. 


OSS,  ipadc   a>  a  I  la 


;is  fori.'..  '■"IS.  li 


tlic  claim  of  the  Lil/i.  and  liis  al1id,i\it  lilc(l  in  con- 
nection witli  tlie  claim  of  tlie  ll/inl.  /liiniiiu/il  \H-['i>vr  \\\r 
'ri'iliiinal  of  .\i'iiitration  at  l'aii>.  coni.iiiifd  in  [laia- 
;:ni|ili  1  of  each  atlidax  it  tlw   statement,  "l  am  a  Hrit- 


is 


h  siihject  li\    iiirtli.  and  the  ihili/  n  ii'ish nil 


iiiriicr  oi 


the  schooner  A/7//  {lllml:  llidiiiuinh  df  the  port  ot' 
\'ictoria  aforesaid." 

Alexander  {''raiih  was  the  .-iil\  \\iines>  exaiiiined 
in  these  two  claims,  and  le  n  ;♦•  called  1(\  telc'^ram 
Iroiii  San  I'Vaiicisco.  w  U-re  he  res^ides.  and  examined 
on  the  last  da\   ot    tIm-  j*<->»»iii.*n  aif  \  iworia 

The  t(  stimonv  •»!'  rllto*  w  iiiiw>»»»  i*-  l»»»i*4'.  and  a  careful 
I'eadiii}.;'  thereof  n:  conw;i.t-f-tit>"(  w  'nttii  the  >-vhiliits  relat- 
iiiii'  to  tlicM-  el,iiini»  w  ill!  *r*rii*>l  rJi*'  liiyli'* 'iniiiiiission- 
t'rs  that  he  was  tli.   ••« 


i;,.  www 


w»-ev.»#  rt(ii«MMi-  \\v<»st«'fl*«  i)fi.  tfliie  til  lie 


d'  th 


e  seizure.  aii<! 


flu*'   (WlSwl*  )fiiM>  .»fA«inl««»ll    i^w  (  I 


rea'f 


IJritain  had  in   i..<iid  \vh#-n  ■•fHl'iii*.^  "we  clwiiin.  fur  her 
whoexcr  iiiav  I**  ♦^»«|!tl«1# 
helialf  ot'  <  Jreat   ftrrta-r 


e  ari'  .••v,4'iiw.i 1 1.^    (Ill 


I.   .(Ill  I     -vc    ||;(i\  (' 


'I    llie 


\»'.ssel  was  I  ■  i/i.stri' il  liii  »|iw»  Ui^MW"  t-tt   ,Vh 
II  .s ,51 


iPh 


42() 


TIIK    Itl.ACK    DIAMilN'H    AND    TIIK    MI.Y. 


'■•V.^I'' '■*:''•'      Tilt' sliiiis'  rcuistcrs  disclose  tliiit    Morris    Mos-  wns 

l-.Nlilbl  t  s,  .         '  •  V-  1  •   1  ■■  I 

|i.  \'.n.   I'.x.  the  i'fi:istfl'iMl  owner.       >o  otiiel'  exideiiee  wiis  ollereil. 
I'xl'ii'iVif  s'        ''"'  '*'"  "t  "^i'lts  it  ini_\  such  liill  ot' sale  e\-ei' existeil. 
p  •iTii.        is  iiot  in  evidence.     The  register  is  onl\'  )MMnia   taeie 
e\  idence  ot'  ownership. 

The  qnestion  of  the  ownership  of  the    ll/in/.-    hm- 
iiiiiiiil  and  the  I/ilif  will  lie  considereil  ;ir  the  same  time. 
Tin-  facts  that  estaltlish  .\le.\andei-  Frank's  ownership 
of  one  e(piall\'  demonstrate  h's  ow  nership  ot'  the  tthiT. 
In  the  xcar  1SS7  Alexander    I'lank  and  one  dacoli 
dntman  were  partners  in  Inisiiiess  in  the  cit\   of  X'ir- 
toria,  owiiinir  three  tradini;-  stations  on  tlie  west  cojisi 
of  \'ancou\cr  Island,  and   o|ieratinL;'  three   >choonei's 
in  the  sealing  l)nsiness — the.h/'/'.  AlUnl  .|(Ao;/>-,  and 
the  liliiik  DitniKiinl. 
'V-  s'!'iiii'rll      dacoli  (inlman   died   al)out   the  1st  ot' .\pril,  jss?. 
Nm.    s.    |i.  ()ii  tile  Till  of  Xovemhf'r,  ISSS,  I:  ■,,  ■  .  of  ailministra- 
'^"  tioii   of  his  estate   were   issued   ti     .'ii   .ander   Frank, 
who,  as  administrator,  made  and  tiled  atlldavits  relat- 
ing' to   the  aiiministratioii  of  the  estate,  all  of  which 
are  coiitaiueil  in  Fxhiiiit  No.  10,  Fniteij   States  claim 
No.  8,  jiaji'es  "JOT  to  ■_'!•!,  iiii  liisixc. 

The  Fnited  States  contend  that  on  cross-examina- 
tion Frank  wa.-  shown  to  he  entir(d\'  iinw(irtli\  ol 
helief,  and  his  testimony  on  dii'ect  examination  can 
have  no  weight  liet'ore  this  !ii;^li  ( 'ommis>ion. 

K'.,  UMKi,  line  {).  Voii  ilid  own  at  one  time  a  lialt' iiitcrt'st  in  tlic  /,////,  and 
■*•*■  yon  (liil  own  at  one  time  a  half  inti'ii'st  in  tin'  lUaik  Din- 

iiioihK  tlid  ytin  not .' 

A.  1  ili(l  not  own  llicin;  I  claiiin'il  to  own  an  intcicst  in 
tlicin. 

^).  \\\  tliat  yon  mean  lliat  yon  wcrt'  not  the  rcfiistercil 
(tw  iier  ? 

A.  I  chiinicd  to  own  an  intort'st  in  llicin  to  ]irot<'*',t  my 
interest  when  I  I'oiind  that  tlic  liiiii  was  insolvi'iit.  Thcro 
was  noliody  to  dispute  my  ri^iit  in  tliciii. 

<i>.  I  aslicd  you  if  tliey  weic  |iarlncrsiiip  property  >v  licii 
you  were  in  partiit'iship  with  .lacoh  (Intmanf 

A.  'I'hey  were  not. 

(^).  And  yon  and  (inlman  iii-ver  Jointly  owned  tlie  /.//// 
and  tlie  /)'/(((■/,■  hianioiid  .' 


Iiiliits:  l'.\ 
N.i.ln.r.S 
rliiiiii  Nil 
S  .  V.\ 
lilliits,       p 

•Jll",  lllM'.M 


IIIE    lil.ACK    DIAMd.M)    ANH    TIIK    l.II.V. 


42; 


A.   lie  bouKliI  tlieiii. 

i).  N(i\\ .  aiisut'i'  tlic  qiit'stiiiii.  (lid  you  or  did  you  not;' 

A.   I  tell  .\(Mi  we  iii'Ncr  owned  tlieni   jointly.     It  wiis  iilter 

his  (It'iitli  wlicn   I  cliiiMicd  tlicin.  Inivin;:  lo'iiid  out  that  lie 

was 


lost,  to  proti'ct  my  iiitevcst. 

Tlic   iiitnic  of  till-  Aljiiil 
ti)  Li/ii  until  the  •_'.")tli  il;i\   id 


\(i(tiiis  was   nut   chanLiiM 


isss. 

AriiuniiMit  in   iiclialt'  (d'  (i.'cat  liritain  adin.ls 
rank  was   (M|nall\    intcrcslcil    in  tin- 

her  sciz- 
lat  adniis- 


i;  \  ll  i  1m  t  ^ 

li(llti>lU       I 


that  AlcxandiT   !• 

Ncntui'c  id'  till'  A//rril  Ailiuus  at   tlii'  time  id' 

lii.'h  t 


nrc  in  lSS(.anil  the  (■xkIciicc  hjihiiw 

siini    is    made  is  \\\r  al'liihiNit    ui'   Mofit/,  ( intiiiaii,  ihc  I- ^  lii.'.'i ' ' 
siilc   licir  id'  ,lacnl)  (Jiitnian.  that    thi-  A/Jml    Ailmiis    j'i 
inis  ii/riiril  1)1/  i'l/i    siiiil  Jinn  <it(liiliii<iii  <(■  i'ldul,'. 


LMl,  line 


(  hi    the    1st 


ila\   II 


r  Xnvcnilii'f,  lss7.  {•'laiik    made '^  ^ '' ' '' 


an  al1ida\it  (round  at  iiaiic  21i>(d'  cxliiliits,  line .")((), 
statino-; 

I.  Thiit  lor  two  years  and  ni)waril  one  dacob  (iiitiiian 
had.  until  the  date  of  his  sniiposed  death,  heveinaf'ter  men- 
tioned, been  in  ])artnershi|i  with  me  in  a  trade  or  business 
carried  on  by  us  at  .lohnsmi  street,  in  the  said  city  ol'  \'ic- 
toria.  iradiiifi-  in  the  name  or  style  of  (liitinaii  >S;  I'"rank,  as 
men  liaiits  and  Indian  traders. 


L'l-J,  li 


10. 


/" 


•J.  That  in   tl 

■-/  th 


le  course  ol  oiu'  said  Imsiness 


iiiir  sitK 


I   tir, 


iiixsoiniil  liner  sfliiiiiiiii's. 


'I'lial  in  the  month  of  I'dniiary  in  the  present  y^ar  the 
said  .laiob  (oitman  sailed  I'iimii  the  port  of  Victoria,  Ilritish 
Colnmbia.  albiesaiil,  ill  one  of 
the  name  id  the  lUnck  IHniiiiuiil. 


our  st'iti  ncliiiDiii  r.s.  known 


by 


11 


r  also  made  an  alliila\  it    on 


the  -Jlst  i)\'  Octidicr 


i:\iiiiiiis 


I' 


1  .'<S,S,  ill  which  this  statriiii'iit  was  iiiailc: 

That  the  said  .lacidi  (lutmaii  was,  at  the  tiire  of  his  de- 
cease, a  partner  with  me  in  a  business  carried  on  by  us  in  the 
city  (d'  N  ietinia.  as  incrcliants  and  Indian  traders,  and  that 
the  estate  of  the  said  .lacob  (lutniaii  consists  of  uitcliitlt' 
iiitfrcsl  ill  till'  prajK  itji  nf  xiiih  jiinhicrxliiit.  That  the  account 
hereunto  annexed,  marked  A,  is  a  true  accminl  of  the  assets 
and  liabilities  (d'  the  estate  id' said  dacob  Ciutimin,  deceased. 


L'li;,  liiir  n;. 


'I'hc  lii'st  t\\  o  it 
as  follows: 


(ills  in   till 


-riiriiiiic   inarkcil 


.\ 


an 


l'.xliiliii>.    ]i. 
:'iis,  lino ;!!.'. 


The  deceased  is  entitled   to  (Uie  half  interest  in  the  follow- 


4 -is 


THE    HLACK    DIAMOND    AND   TIIIC    LILV. 


ill""'  piDpeitit's:    Itritisli  scliODiicr    Itlach-   DiamomL    liritish 
sclnioner  /wV//. 

Tlic   t('stiiii()ii\-  ot'  Frank,  where  he  stated,  "I  toM 


\(>ii  we  never  owium 


1  tl 


lem 


joint! 


n  wi 


after 


(lea 


th  when  1  clainieil  tlieni,"  lias  lieen  citeil,  l)nt  tl 


lese 


atliihivits,  made  to  he  tiled  in  tlie  records  ot'  the  pro- 
l)ate  proceedings  ot' tlu-  estate  ot'dacol)  (intinan,  ami 

claims 
let 


not  made  for  the  iiiiriiose  of  sa\ini:'  to  himself 


j|onl'(.Miltinif     0\('l'     ^ 


"O.OOO.  clearh    estal)lisli  the  f 


that  at  ihat   time,  nnintiiieiiced   li\-  tl 


temptation  ot' 


li'ain,  this  witness  swore  that  he  o\\  iied  one-half  of  th 
lUiii/i-  ItiiinioKil  and  one-half  of  the  Ijhi:   tor  he  sa\s 


man  was  m  i)artnei'sliiu  wi 


thl 


inn,  and 


lan  consiste(|  m  a  one-lial 


II 


e.  I)eini:' 


that  .Ir.col)  (int 

that  the  estatt-  of  ,la<-ol)  ( iiitn 

interest  in  the  propert\df  such  partnerslii| 

the  only  other  partner,  conse(iuentl\' owned  the  other 

half  of  these  schooners:  and  he  distinctlv  sa\s  in  the 

atlidavit,  (|Uoted    t'rom   exhiliits,    pai^c  "Jld.    "That  in 

the  conrse  of  onr  said  hnsiiiess  <iiii  said  Jinn  possessed 

tliree  schooners." 

('ompare  these  atlhhn  its  with   the  statement  cited 
t'rom  the  lu'cord:   "1  did  not  own  them;    I  claimeil  to 

and  the  fact  will  stand  out 


own  an  interest  in  tlieni, 
prominently   that   this  witiie 
deuce,  and  that  his  testimon\'  is 


is   not   woi'tliN'  of  cre- 
to  he  yiveii  no  wcjiiiit. 


At 


n  opportnnitv  was  attorded  tlie  w  itiiess  on  c 


examination  to  e.\|ilain  tliese  atndaxits. 
li..  iii!is.  liim     'i'.  At   tilt'  tiiuc,  yim  swore  yon  owned  oiie-liall'  of  tlicse 

lil.  Vt'SSt'ls? 

A.  I  (lid  not  swear  1  owned  one-liall'  of  tlicm  ;  I  swore  tliat 
lie  owned  a  lialf.     1  claimed  the  other  half. 

<i>.  And  at  the  same  time  yon  were  makiiifj-  that  atlidavit 
you  knew  that  .laeol)  (intnnni  owued  all  of  them  ? 

A.  I  claimed  the  othei  lialf  to  protect  my  interest-  to  ;iet 
some  of  the  money  I  had  to  pay  out. 

Keft'vrin^  to  the  atlidavit  which  he  did  make,  nid 
which  has  lieeii  (jiioteil,  this  witness  is  shown  to  haxc 


iiosi 


tivtd 


\'  swo 


I'll  that  ,Iacol»  (iiitman  owned  une-l 


lai 


>f  the  schooners   llhicl,-   It 


KUIiniK 


I  and   Lihh  and   that 


THli    HLACK    DIAMOND    AND    THE    LILY.  42'.l 

111',  tlic  other  piirfiicr  in  tlic  tinii  of  (TiitiiiiU!  it 
Fnilik.  owiicfl  the  (itli'T  hfilt'.  He  set  ii|)  iio  ehiiiii  in 
the  arti(hi\its  thiit  he  v.iis  eiitith'd  in  diie-lniU' ti,.'  ves- 
sels fis  ;i  creditor,  hikI  in  tiict  tlie  statement  of  iialtihties 
sliows  that  he  was  not  a  creditor. 

'I'he  witness  was  fintiier  cross-examined: 

Q.  1)1(1  you  swear  to  tlic  court  tliat  .Jacob  (lufniaM  owned  I>'..  liHtn,  lim- 
half  of  the  shii)  when  you  knew  that  he  owned  it  all .'  i- 

A.  That  is  what  1  <li(l. 

().   Did  you  do  that  to  deiieive  the  court '! 

A.   I  did  not. 

(,).   Did  yon  tell  rhe  court  t'aat  you  claimed  half  of  these 
ships  as  a  creditor  oi'  as  an  owiu>r.' 

A.   1  did  not. 


I  ere 


th 


lie  witness  himselt  admits  niakiiin  a  false 
atH(hivit,  hnt  in  onh'r  to  protect  his  interests  at  the 
|)resent  tinu'. 

One  .Moritz  (iiitman,  the  only  heir  of  dacoi)  (Jut- 
man,  swore  that  (iiitman  t<:  Frank  owned  the  J/fml 
Aihniis.  lie  cither  swore  to  the  triitli,  or  he  swore  to 
what  Alexander  Frank  had  told  him,  and  if  Frank 
did  not  own  the  half  interest  in  the  Alfird  Adaiiis  he 
defrauded  this  heir,  and  is  defraudiiif^-  him  to-day, 
l)ecau.se  the  idaiiii  of  the  Alln-il  Ailmn.^,  Xo.  X,  is  |)re- 
seiited  to  this  llinh  Commission  in  tlie  name  of  (Jut- 
man  it  Frank. 

When  aske(l  as  to  whether  the  statements  in   the 
affidavits  were  true  or  not,  the  witness  rei)lied  that  he''-  n*:"'- li"f 
sU])j)o.sed    his    lawyer  would    look    out    to  see  that   he     ''' 
swore  to  the  truth. 

He  was  asked  if  he  would  testify  that  Morris  .Moss 
owned  the  claim  of  the  lilai/,'  Uiaiiioiiil  against  the 
Government  of  the  Fuited  States,  and  replied.  "W.'ll, 
no;  I  will  not  swear  that,"  and  then  stated,  ".Morris 
Moss  is  dead,  you  will  recollect."  lie  was  asked  if  !>' .miHMiiK'H 
the  estate  of  Mcu'ris  .Mo.ss  owned  the  (daim  of  the  '"•'-•"■' 
ll/iii/,-  /HiiiihiikI  -Aixiuust  the  I 'nited  States,  and  answered, 
"I  will  not  swear  to  it." 


■  Hi 

-hi 


480 


TIIK    BLACK    DIAMOXIJ    AM>    THE    LIl.V. 


'■'^.'.'.'.''i!*'-  „i.'       .M(>iit/.(iiiniiiin,iil>r(itlu-i-nt'siiifl(l('cciis(Ml,liict)ltGiit- 
iiiiin,  WHS.  ii|MHi   liis  MttiiiniiiL;'  his  iiiiijoritx ,  niiiiniutcd 


:.'is.  liiiriu 


Kxlnliits.     p, 
•Ji:i. 


admiiiisti'iKMr  in  the  |il;icc  ot    AIcxmimIit  l''i'iuik.      Il( 


W  11^ 


lie   i>iil\ 


ICI 


r   (if    ttif    (IcccMscd.    iiiid    lUiidc 


iiii 


iitlidinit  oil  the  Kill  diiy  ut'  Xnvciulicr,  ISSS.  in  wliidi 
is  (•<nit;iiiicd  rliis  statciiiciit : 

'I'liat  llu-  said  .lacoh  Ciatniaii.  at  tin-  tiiiii'  ot  liis  (U'ccasc, 
was  a  |iaitiiiT  in  tin-  liini  of  (iiitiiian  iS;  l'"iaiik,  of  tliccityol 
N'ii'toiia  aloiosaid.  iiuMcliants  and  Indian  traders,  and  Unit 
tile  only  estate.  ]ii(ii>erty.  and  elicets  of  tin'  said  .laeoltiJui 


the    i'niviiie*'   ot    IJrilisli    Cohinibia  consists   <i 


I    a 


IIKllclll. 


til.  Iiiill'  iiiiil.  share  or  interest  in  assets  ot  the  said  firii! 


of  (iiitinaii  iS.  I'raiili.  and  that  the  said  estate  (d'  tlie  said 
.laeoli  (intnian.  deceased,  is  lialile  lo  a  moiety  of  the  lialiili 
ties  of  tlie  said  ])aitiit'rslu]i  livni  ot  (iiitinan  i\;  I'rank:  that 
the  aeeoniit  heremito  annexed,  niaiked  "A,"  is  a  true  ,ie- 
fount  of  tiie  assets  and  lialiilities  of  the  said  i)artneishiii 
tirni  of  (iiitinan  iv;  l''raiik;  that  the  values  of  the  follow  inj; 
jiersoiial  property,  scIiooiht  Ithick  l)iiimi>iiil.'*\,')Oi)i  sidiotnier 
/w7//.  *l..'i<l(l,  etc.' 


Exliilnis,    ]i. 
Jll.lilicL'l. 


A 


lid  111  tlif  same  allnhnit  lie  swnfc 


That    the    said    IImii    oI 


(uitinaii   tS:    1' 


rant 


have  a  elaiiii 


af;ainst  the  (lo\-eriiinent  of  the  Inited  States  ol'  America 
for  tlie  amount  of  ."!<L'(l.  l,'{;;.  such  (daiin  beiiiR  for  the  soiziiii' 
of  (/  fcfhtiii  sflioiHirr  IniDini  hi/  tlif  iKdiir  n/'  the  Aljriil  Ailiims, 
mill  iiiriiiil  III/  llii  siiiil  Jinn  of  (intiiiini  ((•  Friink.  and  of  cer- 
tain seal  skins  beloii^in;;  to  said  Mrm.  and  that  laoceedinus 
have  been  coiniiienced  and  are  now  beiii};  jn'osecuted  for  tlie 
recovery  (d'  saiii  damages. 

'ilic  s(dicilulc  inariviMJ  A.  rclfrrcd  iu  in  tlic  at'lidaxil 

■'riic  inlluw  iiiii'  is  ii  list  (d 


M^ 


int/.  ( iutiiiaii.  state 


tlic  a>M'ts  (d'  till    hi'iii  «ii'  (iiitmau   i*c   rraiik.  and   in 


w  lllcll     I 
inlcroi : 


:iiiii\  i--iiaiiifil    ilfccascii    (iwiicd    oiic-nai 


^rili  iiilK 


T  lllluL-  II 


III  mniii 


/.>>1.5lHl  :  s(d 


KHiliel' 


lOO. 


etc..  iiainmi:  other  iii'o|iert' 


'This  atlidavit  of  Morit/.  <  Mitnian  that  (iiitniaii  i\: 
1' raids  owned  the  .Ufnil  .lilmus  i>  false,  of  the  tcsti- 
nioiiv   ot  Ah'Naiider  l''ranU  that  Ik-  iic\'er  ow  iied   the 


hill  jointlx    with 


III)  ( •iitinan 


fal 


Kxliiliil.--.    [1. 
L'lit.  line:;:;. 


.Nlorit/.  (iiitiiian.  a^  adiniiiisti'ator,  made  an  allicbivit 


thcitth 


d'  Noveinlicr.  JSSH.  in  wliicli  he  state 


THE    BLACK    UIAMONl)    AND    THK    LILY. 


431 


Al 


eXciiKk'r 


raiil- 


tliiit  111'  liiid  rt'CfiviMl  Mil  ort'cr  from 
"f(ir  the  purcliiisi!  ot'  the  iiitcirst  of  siiid  .lacol)  (Jut- 
iiiMi!,  ilc'cciiscd,  ill  the  iissots  of  the  siiid  tiriii  (cxccpt- 
in<i'  tliereout  the  siiid  ehiiiii  of  >^2<»,433  iijj'.iiiist  the 
Tiiited  Stiitcs  iuithorities),  tlie  coiisidcnitioii  otfcred 
liy  the  said  Alexniidcr  Frank  for  sucli  |mrciiase  l)eiii<>' 
the  assuiiiption  by  the  said  AlexamU'i-  Frank  of  all 
the  lialiilities  of  the  said  tiriii."  And  in  the  same 
aHi(hivit  he  stated  "tliat  such  account  shows  an  excess 
of  the  hahilities  over  the  assets  to  the  amount  of 
SSVJ!).,")7." 

Attached  to  this  ailidavit  is  a  statement  of  the 
assets  of  said  estate,  iuchKhnii'  the  Ul<i<k  Dhiiiioi/d  mn\ 
I, ill/,  and  of  the  lial»ilities  tlu-reof  Sulitraciiii,^'  the 
assets,  s|7,3-_);{,2!»,  from  the  lial)ilities,  Ni,s,222.S(j,  tlie 
Itahilice  is  sSidt.f)?. 

Tliis  atli(hi\  it  is  in  effect  a  petition  to  the  Supreme 
( 'oiirt  of  Hritisii  ( "ohimltia  in  proliate,  praviny  for 
h-ave  to  transfer  all  the  assets  of  the  estate  of  dacoh 
Giitman,  inelndini;'  the  Ithicl,-  IHdiiinnd  and  /./'///,  and 
which  are  set  out  in  said  petition  \)\  name,  to  Alex- 
ander Frank  iii  consideration  of  his  assuminji' all  the 
lial)ilities  of  the  deceased,  the  liabilities  exceeding' 
the  assets  by  the  sum  of  ^^(SilK.,")?.  The  onlv  asset  to 
lie  ex(diide(l  from  the  transfer  was  the  dai'iu  of  the ^'j',' -'''''"" 
Alfred  Adams  a<iainst  the  (Joverumeiit  of  the  I'liited 
States. 

A  bill  of  sale  of  all  the  assets  of  dacol)  (Uitman, 
deceased  (exceptiii;^-  always  the  claim  of  the  A/fnd 
Adiiiiis  a,!i-aiiist  the  I'nited  States),  coiiveviiij:'  in  tiiese 
terms:  "The  said  Moritz  (.iutman  doth  hereby  <iTaiit. 
assijni.  ;iiid  convey  unto  and  for  the  use  of  s^iid  Alex- 
ander Frank,  his  iieirs,  executors,  administrators,  and 
assiiiiis,  all  the  estate,  ri<>lit,  title,  and  interest  of  him, 
the  said  Moritz  (Jutman,  as  the  administrator  of  the 
estate  and  effects  of  the  said  .lacol)  (iutman  in  and 
to  all  and  sinoular  the  property  in  fhe  tirst  schedule 
heret(»   contained   of  what   nature   soever,"  was  exe- 


;  < 


4;?2 


THK    IILACK    DIAMOND    ANIi    TIIK    LILY. 


i:x..  ,. 

lilir:!!). 


:«l!i.      I  i  11  <■ 
L'!t. 


•«'"(Mit('(l  (.11  tlic  Ntli  of  Xovciiilifr,  1NS8,  iUid  Hied  with 

tlicrc^istfr-jiciHM'iiliit  X'ictorifi  on  tlu'  titliot'  Xovciiilicr. 

that  liill  of  sfilf  is  th;'  foMowiii';'  stntc- 


Exhiliits.    |i.        C.iitllil 


iiiciit: 


Ai 


led  ill 
11(1  whcrciis  it  is  c 


■itiiiiiitcd  that  the  liahili- 


K  \  h  i  lii  t  s. 
1M..--'1-M.'i:!. 


tics  of  till'  said  |)iirtii('i'shi])  cxcci'd  the  assets  thereof 
l»y  the  Slim  of  ns!I!I.-)7." 

Ill  the  oriiiiiial  schethde  from  w  iiicli  tliis  liahiiice  of 
>^s;);i.r)7  was  olitained.  viz.  tiie  sche(hiU'  tileil  in  the 
proliate  court,  the  llhicl:  I) 


nniitiiiil  and  tlic  l/ihr.wv  li\ 
name  set  oiitand  iii\'eiitoi'i<'d  at  the  Slim  of  >^l,r»(Ml  eacli. 


and  till 


total 


Slim  of  s,'5,u(Hl  is  i'c(|iiirc(l   to  ma 


ike  tl 


as: 


icts   of  tile   ]iartiu  rslii|»   inventory    a 


t    th 


le 
<lllll   of 


><17.32;).'-".l.  it  will  licfin-thcroliscrvcd  that  thclialiil- 
ities.  asstatdl  in  that  sclicdiilc,arc  >^lS,2'J-_'.S(;,and  that 
the  lialaiicc  is  :>,Sil!l.57.  the  same  amoinits  stati'il  as 
the  halaiicc  and  the  total  liahilities  in  the  hill  oi' 
sale  from  Moritz  ( Jiitman  to  Alexander  Frank,  datcil 
Xoveiiilicr  8.  and  liled  tin-  Htli  day  of  Xo\('ni1»cr. 
Accordin^iK',  when  the  traiist'cr  was  made  from  Morit/. 
(iiitman  to  Alexander  Frank,  the  schooner //A^c/r  h'lii- 
I  and  the  schooner  L'lhi  were  nccessarilv  iiududed, 


IIHllKl 


nd  Alexander  Frank  therefore  liecame,  on  the  fStI 


I  ot 


X 


ovem 


lier,  the  owner  of  the  schooner  llldck  I) 


nniKuiil 


aiK 


th 


.ftl 


le  owner  ot  the  sclioonei 


/.;//; 


This  is  the  oiilv  hill  of  sale  in  e\  idciice  of  a  trans- 
fer of  the    Lilf)  and    llhul:   IHiniiciiil.      It   is  a    hill   of 


sale    to    he    recorded    with    the    reuister-yeiieral 


and 


therefor 
I) 


'(■  does  iio 


t  h 


\-  nai 


lie  set  out  the  /wVvand  llhnl,- 


KIIIHIIII 


I.    hut    the   amounts   show   comdiisiveh 


that 


the  two  ships  were  iiududed  in  the  transfe 

h 


le  law  does  not  reijUire  a  sliip  to  lie  re"istere(i  u 


order  to  he  transt'erred 


he  reiiistr\'  "ives  certain 


pri\  ile;^('s   to 


diin:    lait  tl 


le  owiiersliii)  as  ( 


dis(d 


osed 


hv  tl 


le  reii'ister  is  not  conclusive.     ( )ne  |iersoii   may 


own  a   ship  and  have  her  reiiistere(l   m  the  name  ot 


th 


anotliei 


Attl 


le  tll.le  ( 


i|'  this  transfer  Alexander  j-'rank 


was    an   American    citi/.eii   and   could   not  olitain  the 
re"'istr\'  of  the  two  \cssels  in  his  name. 


Till'.    MLACK    DIAMOND    AND     I'lIK    LILY. 


433 


M 


nritzdiitiiiiiii  tcstiticd:    "1  Ict't  N'icf 


nrifi  sonic  tiiiii 


(iisiiics.- 


11.,  i:iii: 


ill  ISSS,  jind  Alcxiiiidcr  Friiiik  coiitiiiucd  tlic  1 

Mild  of  con !•.><('  kc|)t  tlic  liooks;"  iiinl  tli.-it  lie  Wiisiil 
tour  yciirs  from  N'ictoriii.  Fi-iiiikdid  not  desire,  t 
tore,  to  lejive  tlie  sliii)s  re,i;istered  in  the  iiiiiiie  o 
stiite  of  .liieoh  (iiitniiiii,  lieciinse  .Moritz  (iiitiiifiii,  tli 


>.seiit 
liere- 
f  the 


iidiiiinistrjitor,   wiis   h'iivin>-'  the  citx'   t 


or  ii    jieridd   ot' 


tonr  yeiirs.      Frnnk  iiccor(nnnl\  nuuh-  use  of  tiie  iiiniu 


t    .Morris    .Moss   foi'  the  |)nr|iose  df 


re<>istere(| 


h!i\  nil!' 


til 


hiji 


I  lie 


.M. 


'{• 


>rrc 


on    tile    Kitli 


reiiisTi'reci    in   tiie   iiiinie  of  .Mori 


IS 


(lilV 


.f  N 


oN'einlie 


INSH.      Tliiit 


Morit/   (Jntniiiii    Iwid    lio   title    to   tiie  I.lli/ nni]    lilml; 


hiiniiniid  Mt   tliiit   tin 


le    IS 


d;ited    Xoveiiilier    8,    ISS.S,    wliicli    t 


sliowii    i»\    tlie    itili    of   sill 


\'('sse 


to 


exiiiiiler 


•  riinl 


the    owiiersliii)  < 
'I'l 


'i'h 


.f  .M 


rjiiisferred    tl 
i»iil\'  e\i(leii('e 


lese 


orris 


M 


OSS      Ir 


tl 


le    eiitrv 


on 


th 


)f 


register.       I  Ins  entry  is  not  siitficieiit  to  outweiiih  th 


imi  .Moritz  (Jiit- 


hill  of  Side,  introduced  in  evidence,  fi 
iiKiii  to  .Mexiinder  Friiiik;   find  jit  the  time  (.f  its  coii- 
veyiince  the  prohjite  court  liiid  iie\ cr  mithorzed  .Moritz 
(JiitniJiii  to  Illlike  such  convevitiice. 

cnilter,  1S88,  the  trniisfer 
ovemher,  iiuil 


On   the  14th  diiy  of  Nov 
i\  iii<>'  lu'cii  iniide  on  the  Stii  dti\   ctf  X 


tli( 


hill  of 


silk 


recordeil  on  the  ittli  diiv  of  X 


ox'emher, 


.Moritz  (iiitiniin  hied  in  the  Siipr e  ('oiirt  of  Uritish  l«' 

Colnmhiii,  in   prohnte,  his  iiHidiivit,  diited    X 

!•,  ISS.S: 
entered: 


18."ili,  line 


eiiriu"-  WIIS  hud  imd  the  fol 


o\ciiiher 


owmi;'  order 


II. 


IJlxm  hearing  an  application  on  l)eiiiilt' of  Moritz  Giitinaii,  K'.,  if<.'>!i,  liae 


tiic  adiniiiistrator  of  tlio  estate  of  Jaiiob  (Intman,  decea.sed! 
and  ni)oii  reading  tiie  aHidavit  of  tlie  said  Moritz  (Mitnian, 
(iled  lierein  on  tlie  14tli  day  of  November,  ISSS,  1  do  order  tliat 
tiie  .said  Moritz  (iutinan,  the  ,said  adininistratin-.  he  at  lib- 
erty to  .sell,  convey,  assign,  and  otherwi.se  as.snre  to  Alex 
under  Frank,  of  the  city  of  Victoria,  in  the  Province  of 
British  Columbia,  all  the  real  and  per.sonal  estate  and  eHect.s 
of  theabove-named  ,labob  Gutiiian,  decea.sed,  of  the  Trovincc 
of  British Colinnbia(e.xcepting thereout  theclainiof  the.l//W'(/ 
Ailums  against  the  (Jovernmcnt  of  the  United  States). 
II  s "w 


.■>o. 


wn 


4;{4 


Tin:    IlLACK    DIAMUNK    ANIJ    THK    LILY. 


!  i,'l 


That  ill  consideration  ol  tlii'  (•oiiveyaiice,  assignment,  or 
otlHT  assmaiKH'  to  be  made  under  liiis  order,  the  said  Ahx 
ander  I'raniv  do  assume  and  pay  all  the  delits  and  liabilitiis 
of  the  said  liiiii  of  CTiitiiian  vV  Frank,  nliich  deiits  and  lia 
hilities  are  jiai  liiularly  set  out  in  an  exhibit  marked  A,  an- 
nexed to  the  said  allidavit  of  the  said  Morit/  Giitinan,  and 
therein  appear  to  amount  to  the  smii  of  sJIS.'JliJ.Sli,  and  that 
the  said  Alexander  Frank  do  enter  into  seeurily  to  the  amonni 
of  •"'IS.L'L'i'.SfJ  to  indemnify  the  estate  and  effects  of  the  said 
.laeol>  (iiitinan.  <leceaseil.  from  the  payment  of  any  of  the 
delits  and  liaiiilities  of  tlie  said  linn,  such  security  to  be  to 
the  satisfaction  of  and  approved  by  the  rejjistrar  of  this 
court. 

Had  .Morris  .Moss  imrrliiiscd  tlie  llliirl,  hianiin/d  ;\i\i\ 
Ijiljl,  lit'  wdiiM  ii(»t  liiivc  (•(msciitcil  to  .Morilz  (liitiiiaii 
tninsl'crriii"-  tlic  title  to  .Mcxiimlcr  Frank  nii  the  sili 


il\    o 


f  N 


(i\('iiil»cr 


M 


(•ri'ovci',  it  \v(»iii( 


I  h 


ii\('  lifcii  a 


siiii|ile  iirociMliirc  t(»  liuvc  filed  with  the  |tn»i»iite  ctuirt 
a  petition  |ii'iiyiiio'  tor  leave  to  .sell  tlie  vessels  to  Morr 


IS 


Moss;   hut  no  siicli  petition  e\ cr  was  iiled,  and  no  sncli 
sale  ever  aiitlnu'ized. 


Tl 


le  onlv  col 


H'lusion  is  tlijit  .Morris  Moss's  name  \va^ 


ised  siiiiplvtor  the  purpose  of  ell'ectin^'  a  transt'er  on 


H.,l!Ms,  lin,-,j„.  ,.^,„.i^ter.      .Morris  .Moss  w 

!>.,  iL'-'M,  line  ness  ot'  reiiri'sentiny   pureliasi-rs  of  s( 
(10.  ' 

!{.,  lL':il.  till 

H.,  ij:ti. 
10. 


IS  enyayed  in  the  liii 


si- 


ll sk 


\\\^ 


It  th 


port  of  \"ictoria,  and  was  also  en^aiicd  in  the  hiisiness 
of  oiitiittin^'  vessels  as  a<;vnt  for  other  parties. 
'ii"'      'I'he  lliii'li  Coininissioners  are  advised  that  it  is  not 


iin  iniroiniuon  practice 


t  \'ictoria  for  si 


tirel 


v  or 


iiartiv  owned  hv  American  citi/eiis, 


to  1 


lips,  en 
)e  re"istered  ii 


the  name  of  suhjects  of  ( Jreat  IJritain.  ( "liarles  Spriiij^' 
swore  in  the  afKdavits  lih-d  at  Paris  that  he  was  the  sole 
owner  of  the  Oiiirard  and  t\\v  F((r()iiiifr,  and  the  te.sti- 
luonv  in  this  Record  disclo.ses  that  .Mexainh'r  .McLean, 
an  .Vmericaii  citizen,  owned  one-half  <»f  each  of  lliost' 


\-esse 


Will 


iani    .Mnnsie   made  no  reference  in  tin 


artidavit  Hied  at  I'aris  to  the  interest  of  Hechtel  in  his 
ship,  altliouo'h  it  is  now  admitted  that  liechtel  was 
e(|ually  interested  in  the  venture  of  the  I'dtlijiiidn-  in 
ihe  years  18S1I  and  ISDO.     Theodore  I.uhhe  testilie<l 


Tin;    Itl.AiK    DIA.MiiM)    AND    TIIK    LILY, 


[3; 


tllflt   Jlltlluli';li   lie  \\ 


A 


iiicriciiii  citizcii,  lie  \\j 


one  time  !(  \);\vt  iiwiicr  of  tlic   Faninritr  iiml  tlic  Oii- 


iciirtl;    iiii<l    .Moritz    (iiitiiiiiu 


I'Vitiik    \v;is    til 


.If 


•re    tliiir    AlcNiiiidcr 


l>\V 


lltT    nf     the     AIDcil     Jihiill-' 


:iltliniii.li    tilt'    slii]i    wiis    rc;;istcrc«l    in    tlic    iiimic  < 
-fficult    (Jutiiiiin.      I'iitrick    llickc\-   tcstiticd    tlmt    I 


•f 


WHS  liiilt"  owner  of  the  ('(irnl 


iiilniii  ulicn 


tcrcd  ill  tlic  iiiiiiic  of  Doiitilil  l'r(|iiliiiit. 


ic 
It'  Wiis  rco'is- 


H 


ifiinii;^-  upon   the  ow  iicrsiiii)  of   AlfXiiiidci-  Kniiiiv,  i;.,  iTKo,  li,,,. 


('fij)tfiiii  'I'lioiiiiis,  ill  cliiiroc  of  tlic  lllock  niiiiiHiitil  t)U 
tliis  voviiMc,  tcstilicd  tliiit  lie  took  provisions  olf  iit 
Alexjiiidcr  Fniiik's  triidiiii;  stiitioii  upon  his  return 
from  iieriiiji'  Scji :  iiiid  this  witness  further  testiiied 
tliiit  Alcxiiiider  Fnink  wiis  idioiird  the  ll/iu/,-  Didiiimtd 
at  the  rime  she  left  \'ictoriii  for  her  voNjiye  to  Ueriii"' 


.'I. 


Sea  in  the   Near  l«s:i. 


and    made  the  trip  to  the  west 


coast  of  \'aiicoii\ cr  Island. 

The  It/dcl,-  D'khikhiiI  iiiiide  a  trip   to  I'Vank's  lisliiiii;- ij.,  nsi,  n 
station    on    (^(iiecii    Charlottes    Islands    after    Icaviii;;' 
Ueriii^'  Scii   in  the   year  ISS'J,  Miid  was  there  loaded 
with  a  car"!!  licloiiiiino'  to  Frank. 


;is. 


Althonyh   the  Alfml  A, la 


HIS  was  reiiistcrcil   in  the '■■x'l  i'» ' '», 

L'07,lino3-'. 


name   of  Jiicoli   (Jiitman,    Alexander    Frank    held   anxh 


mort<!'ai''c 


i  Ip  i  t  8, 


is    moit^ao',.   was    not    discliar^^cd    of    ^;"•  "''• .« 


record  at  the  time  of  the  death  of  .liicoli  ( iiitman,  hut 


stood  aiiiinis 


t   the   I 


)oat  which  was  known  as  the  /.//// 


It.,  claim 
No.  8 ;  reg- 
ister-I //)■«/ 


Ailiin 


during-  the  time  of  the  proccedinjis  luid   in  the  est-ite     m 
of  dacol)  (Jutmaii. 


!•• 


A I 


inspection  of  a  statement  of  the  liahilities  of  said 


<U 


■ceased   dacoii  ( iutmaii  di; 


(•lose 


that  the  iiiorti: 


to   Alexander   Frank   was   not  s<-liediiled  aiiionii'  tli 
dehts  ol'  the  estate,  showiuij'  that  tl 


le  nioito-aiit'  mer(d\-  i:.siiibita 

L'OK. 


represeuteil  Frank's  half  interest  as  an  owner,  and  was 
not  considered  a  delit  of  dacoh  Gutman,  deceased. 

Colli'ctor   Milne,  in   reporting'  as  to  tlu' owners  of  K'.,  I8i9,liiies 
vessels  sealin;^-  from  the  jiort  of  \'ictoria,  stated  that    ^"•'''• 
"A.  Frank  was  tiie  owner  of  Itliirk  Itiiimoiiil,'"  and  "A. 
Frank  was  owner  of  A////." 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


m 
in  U2 

u  lU 

S  Hi  12.0 


IL25  HI  1.4 


M 


1.6 


ailC 


Sciences 
Corporation 


ri>^ 


v 


4^ 


\ 


\ 


^ 


;\ 


23  WIST  MAIN  STRUT 

WIBSTH.N.Y.  MSM 

(716)I72-4S03 


'4^ 


«* 


■\ 


480 


THE    HLAl'K    DIAMOND   AND   THE    LILY. 


'I'liis  tJil(l»',|ir»'|tjir»'(|  by  (!ol lector  Milne, slmws  mi  its 
tiirc  tiiiit  it  Wiisji  tiiltlc  prcpnn-d  with  rcterciicf  tntlic 

"wr"' '""  "'^^"*^'''^'''l'  "*  ^•"^'^•'I'^i  '>'"!  ""♦  •''*'  rejiistcrcfj  owners, 
lieciiusi-  ill  (iiie  instiUUH'  it  is  stilted  tiiiit  the  owners  ol 
the  Aiiioni  w«'re  not  known.  Ut  course  ti>e  vessel 
iniist  hiive  lieeii  rejiisten-d  in  tlu-  iiiinie  of  .s,.ine  per- 
soii;  iiiid  ii;iiiiii  in  the  t;il»le  it  is  stiiteil  tlint  liidiiuis 
owned  ciTtJiiii  vessels  and  «'ertiiiii  coninierciid  coiii|iii- 
iiies  owned  <ithers.  jilthoii^li  the  register  would  c  oiitiiin 
no  reference  tn  Indiiins  or  iinincor)»or;ited  (•oni|»iiiiies. 
The  I'liitecl  States  contend  tluit  the  testiiiion\ 
adduced  estalilisjies  heyoiid  coiitroversv  that  Alexan- 
der Kraiik  was  the  owner  of  the  llltnl,-  Oiaiiioinl  and 
the  A/7//  at  the  time  of  their  seizure  in  IHS't.  and  that 
nodaiiiaju-escaii  l»eawarde<l  the  owner  of  these  vessels. 


I 


THE  MINNIE. 
<"I.AIM   No.   17. 

Tlu'  Miiiiiii    ciitcivtl    Ucriii-'-    Sfii  ,lun«'  27,   IHSIiJ*' ":'".  line 
cjiiTviiifi-  eifilit  cniKU's,  two  liojits,  oiu-  nf  w  liicli  would 
he  ii  .stern  liofit,  iiiid  a  crew  of  Hi  Iiidijiiis  iiml  "i  w  liifc  i{.,  ii.«!,  line 
incu,  iiicliidiiifi- ciiptiiiii  Jiml  iiiiitc.     Slic  rontiiiiit'd  her    "' 
liiiiitiii},^  from  the  27tli  of  .luiic  until  tin-   lotli  dav  of 
.lidy,  Jit  4..'{0  o'clock  in  tlic  afternoon,  when  slic  was 
.seized  l»y  the    Tnited   States  rexenile   cutter   I,' ir/ia nl  U..  wmi,  htw 
liiisli,  coniuianded  l>y  Captain  Shepard.     The  hoard-     '"• 
ino-   n«''cer  directe(l  the   removal   of  418   skins,  one 
hieeci. -loading;'  shotjiun,  one  inuzy.!edoadin;i' sliot;iun,  i>'..  iir.o,  line 
and  eleven  spears  to  the  /{iilianl  /,'itsli.  ''"■ 

The    schooner    was   i»r<lered   to  proc«'e<l   to  Sitka. '^"'''"^''    "' 
The  instru«tions  were  not  olieyed,  and   "that   ni^ilit    r.'i.i"!'!, the 
ma(h'  some  new   spears  and  in. if  iiiniiiiiii/  idiiiiiiiinril    ","'",?.    "' 
Innifiiifi  iisHiniiiih  inifliiiii/  liinl  lidjifiriiiil ;  we  captured  "»(»     iii!i(lr   "t 
seals  on  that  ilay  and  !M»  on  tlie  next.      Kept  on  hiint- 
iii;i'  until  the  17th  of  Aiijiiist,  wlu-n,  having'  .'lUO  seals 
on  hoard,  I  left  for  the  south.     After  pa.ssin^' throu;:h 
rnimak  I'ass  1  told  the  prize  crew  I  should  steer  for 
\'ictoria.      lie   replieil.  'l   always  tliou;tlit   so.'     The 
Indians  told  me  that  if  the   I'liited  States  sailor  at- 
tempted to  take  the  xcs.sel  to  Sitka  tlie\    would  throw 
him  overhoard.      We  arrived  in  \'ictoria  last  evening, 
and  to-day  at  noon  the  prize  crew  came   ashore  and 
reported  at  the  American  eonsiilate." 

The  owner.  N'ictor  Jacolt.seii,  was   captain   on   the 
voyajfe,  and  testified: 

if.  Dill  yon  make  as  niaiiy  new  si»t»ars  as  tlio  old  ones  that  H  ■  i  us,  line 
liad  bi'iMi  taken  away  from  you  1  ■'-• 

A.  No;  1  didn't  nuike  as  many,  but  1  nnidi*  as  many  as 
were  needed. 

437 


Vic  I  en  ill , 
-il  (lii\  (if 
Si'|.|..  iswi. 
If..  1I,->1, 
line  .Ml. 


438 


THE    MINNIE. 


1; 


(}.  Voii  iiiiule  soiiiL'  ol'  tlioso  spetirH  tlie  iii(;Iit  of  tlitt  day  ynii 
weru  .sei/.e*l,  did  yon  not ! 

A.  Yes,  tlu'  vi'ry  saiiH'  ni^lit,  and  tlie  rt-st  in  tin-  inorniny. 

if.  Ami  tliv  licit  iiioniiiiij  i/i.ii  romiiieiifeil  ni'iiliiiy  im  tliniitjli 
iiotlilnii  liml  liiipiii'iifil.' 

A.   Tliitt  in  irliiit  »(•(■  fliil. 

'riu'odoiM'  .Mn^iiit'scii,  mate  ot  till'  vessel  at  tlic  tiiiic 
oftlic  seizure.  i»ii  direct  exaininatinii,  testiti«Ml: 

R.,  1437,  line     if.  AI'tiM-  heinjr  ordcri'd  out  had  you  any  conversation  with 
'■^T-  th«'  master  of  your  vessel  as  to  wiiat  yon  wouhl  do? 

A.  Yes;  we  talked  the  matter  over,  an<l  we  came  to  the 
cont'lusion  that  we  wasn't  jjoinj;  out  of  IterinjjSea  uidess  wo 


were  towed  out. 


i{..  ii:iT. 


Tl 


lis   witUe; 


a\  ; 


'riiat   ill    tlie   «'Veiiiii;>'  of  tli 


(lav  (d  tile  seizure,  the  vessel  pinceeded  to  tlie  inirtli- 
\vard,"aiid  tlieii  corrects  tliestateiiieut  "to  the  uortli- 


east ; 


iiKl  iiiaKes  a 


tiirtli 


«'r  statement: 


K.^  I  ins,  liiK'     tf.  Ou  the  day  t'ollowiiig,  where  did  you  proceed? 
^-  A.  \\  Cut  ii|>  to  tiie  northward;  it  dropped  calm,  and  tiiey 

lowered  the  next  morning,  and  they  went  out  with  their 
;uns.    Captain  .lacohseii  was  fixing  up  spears  lor  them  wliiio 


thev  were  out.     The  Indians  wasn't  out  verv  lou' 


Th 


I?.,   1438,  line  St 
3. 

I.'.,  ll.-.l, 

:^i. 


came  liack   again;    they  couldn't  lind  any  seals,  and  they 
wasn't  much  use  to  the  sliot;;uiis. 

lie  then  states  that  alter  they  were  ordered  out 
the\  steered  u|t  to  the  northeast,  prohahlv  20  iiiih's. 
lowered  the  next  day,  and  ji'ot  a  tew  seals.  "I  can't 
renieiiiher  how  niaiiv,  prohalily  \X  or  :.'(>." 

MajiiK'seii  also  states  that   prior  to  the  dat*-  ol"  the 

izurethe  hunters  made  the  larj>est  catch  of  the  vov- 

a;i'e,  and  )»laces  the  iiumher  at  74.     .lacoliseii,  on  the 

''"" contrary,  savs  that  the  da  v  after  the  seizure  tin-  hunters 


H..  nil. 
'UK 


line 


i;..  Ili:i. 
12. 


took  .")0  seafs  and  KG  on  the  next  day. 

Captain  .lacolis«-n  stated  that  he  had  no  lo<>'  of  the 
voya;i'e  to  produce,  ami,  iiotwitlistaiidin;^'  the  fact  that 
he  secured  hetter  results  after  the  wamiiiji'  than  hefiuv, 
endeavors  to  estjihlish  that  he  left  tlu'  "hest  sealiii;;- 
;>niuiids." 

line     il.  And  in  the  meantime  (after  the  seizure  and  before  leav- 
ing the  sea)  you  sealeti .' 


1 


THK   MINNIE.  439 

A.  Yes;  ii]>  to  a  tew  days  hel'or*'  we  ctiine  out  we  wealed 
right  aloii;;. 

Milt  lie  siivs  tlic  sciils  wen-  sciittcriiiji  iiii<l  f'l'W  iipH.,  mi,  line 
thei-t'.  •*• 

Oil  (•ross-i'xjmiiiijitiitii  tlic  witness  tcstiticil: 

Q.  And  tlie  iiex^  iiiorniiitfyoiicomiiu'iiced  sealing  astliough 
notliiiig  liad  happened ' 

A.  That  is  wluit  we  ditl. 

Q.  How  niaiii  seals  did  you  take  the  day  after  you  were 
seized  ? 

A.  Oh,  I  don't  remember  that  for  certain. 

<;.  About  how  nniiiyf 

A,  I  suppose  W  or  ."»(»;  nniybe  not  ">(>;  between  .'Ml  and  50, 
anyhow. 

His  attt'iitioii  \V!is  tlicii  ciillcfl  totlic  iillifhivit  jniiitcMl 

in   tiu'  Amcricim  Kcpriiit  id'  tlic   I'aris  Pn >(•(•»■(! iii<>s, 

vol.  "),  |i.  ,"{G(>,  aiid   lie  was  askcil  it"  lie  iidmI*'  an  alH- 

(lavit  rontaipiiiff  tlic  statcuicnt,  "I  then  conclinlcil  I 

would  not  f>M  t<»  Sitka,  l)nt  wouM  continiu-  niv  V(»v- 

a;>t'.     That  niiriit  wc  niadc  suinc  new  spears,  and  next 

iiiornin<i'  eoninienced   inintiiiji-  iis  tlnniiili   itotliliifi  huil 

lidlijiciit'd.       W'f  ra/ttitrril  'lO  .seals   flint  iltiif,  a  ml  HO  dii 

the  iiijt."      lie  answered  that  he  snitiMised  he  did  inakeH.,  Hi".,  line 
.III  I  .  '  '  "" 

it,  anil  that  he  supposed  it  was  correct. 

This  allidavit  liears  date  Septcinher  2,  1SS!I,  and'^ 

was  prepared  iiniiiediatelv  .t't«T  liis  return  tVoiii  H«'riii;>' 

Sea. 

The  testimony  of  ('a|)tain  .lacohscn.  Itearinj:'  n|»on 
the  clianj;c  of  position  of  his  shij)  after  the  ,sci/.ure, 
has  little  wei<>lit  when  the  ori;iiiial  atHilavit  made  l)v 
him  on  tlie  "Jd  day  of  Septcinl»cr.  Issy,  cuntaiiis  no 
mention  of  the  fact  that  he  had  altaiidoned  the  seal- 
'm*X  firounds  or  clian<!('d  his  position,  hnt  on  the  con- '*•' ""'' 
trarv  states  that  the  next  morninji'  he  commenced  to 
huiiT  "as  thon<>'h  nothinji'  had  happened." 

Thv  aHidavit  Hied  hy  this  claimant  at  l*aris  con- 
tains tliis  statement : 

An  hour  or  so  after  the  h'lixli  went  away  the  man  left  iii^'"'- ''I'r*''*' 
charge  showed  me  his  written  instructions  from  Captain  Kepru'it 
Shepard,  of  the  W*>/ifl>7/ AJ««/(,     As  nearly  as  I  can  remeni-    Pioceeil- 


ii.-ii. 


440 


TIIK    Ml.NMi:. 


1*11  lU 


in>{»oiTri-  her  the directioiiH.  lie  was  to di'liver  tlie  Mhtiiic  to  tlie  riiitod 
•?"!["'  "'states  aiithurities  at  Sitka,  aiitl  jdace  her  captain,  iii.vm'H', 
tini'i'  '»t""*l  irate  iiuiler  arrest.  /  nl  oiur  mtnir  mt  ttnj  mind  to  hIhii 
irlirvf  I  mis  unil  rtitch  what  nenln  I  coulil.  Next  iiiorniii^;  I 
made  new  speurs  for  the  Indians  and  sent  them  nut  sealing. 
1  rcnndned  in  the  sea  up  to  the  Kith  of  Aujfust  t'ollowing, 
and  in  that  time  tiot  KS(>  seals  and  >S  sea  otters.  I  did  not 
see  anything;  of  the  li'iiHli  after  the  ir»th  of  .Inly. 

Iliiil  Ciiptiiiii  .lacohsfii  at  that  time  cniu'civotl  the 
idea  ot"  inaKiiifi'  claim  oii  tlit*  jiToiiinl  that  he  chaiijicil 
liis  pusitiuii,  ri-fcrciicc  wuiiM  have  liccii  iiukIc  to  tlie 
tiU't  in  tliat  aHiilavit:  ami  in  ciiiiiiiioiitiuo'  on  the  Jii<li- 
iifil  Jliisli  not  haviny  a)i|u'ariMl  al't«'r  tht'  loth  ot'.hilv, 
it  wouM  !»('  rcasonahh' tn  su|i|i(>s4'  that  lu'  wonld  have 
said  that  lie  went  utl'  to  an  nnoccupii'd  an<l  nnusi'd 
|Mirti«in  of'  Tn'rin^i'  Sea,  and  thfri'tnrc  avoided  the  llii li- 
iifd  /i'»<.\//,  and  not  ha  \c' stated  "I  atonee  nia<h- up  niv 
iniiul  to  sidii  irlinr  I  irns  iiitif  ititch  ivliul  seals  J  iniiliir 

\  foni)tarison  of  tlic  catcli  niado  l»y  tlu-  Minnir 
l)('t\vfcn  tlu'  "JTtli  day  of  .hnic,  \vh»'n  shi-  filtered  the 
sea,  and  the  15tli  dav  of  .Inly,  tlie  day  iipoii  which 
she  was  wanieil,  with  tlu'  catch  iiiaih-  Itetweeii  the 
l.jtii  ilay  of  .Inly  and  the  17tli  day  <d'  Au;iiist,  the 
day  she  hdt  the  sea,  shows  that  tlu'  hiiiiteis  took  more 
seals  per  ilay  after  she  left  tli  'se"liest  sealin^i'  /rounds" 
than  she  did  when  she  was  occn|iyiii<i- them. 

Captain  .lacohseii  testified  that  when  he  entered 
Ueriii/  Sea  he  had  !."»(»  skins  ahoard  the  ship,  and 
there  were  4lS  sei/.ed  l»y  the  cutter  on  the  I'ttli  of 
.Inly,  making  the  cat«di  Itetweeii  tin*  "Jltli  of  .liiiie 
and  the  l,")tli  of  .Inly,  '-'(IS,  which,  heiiiji'  divided  l>y 
the  iinmlH-r  of  days  occupied  in  iiiakiii<>'  the  «-atcli, 
viz,  IS,  fiives  a  daily  catch  id"  nearly  1;*). 

.\fter  the  seizure,  ami  up  to  the  time  of  leavin}^' 
l{.,_^iiit!,  lii>«t|„.  s,.a,  the  Miiniir  took  4KS  skins,  and  limited  thirty- 
two  ilays,  making  I  -r  avi'ra^'C  catch  over  15  seals  a 
day. 

Assuredly,  when  the  effect  of  ieavin"'  "the  liest 
sealin;^'  ^^rouiids"  is  to  produce  ludter  results  than 
when  oc«'Ui»yin<i-  these  jirounds,  the  claimants  would 


It.,  Mil.  lim 


THE    MINNIK. 


441 


not  ii|i|»c!ii-  to  !>('   Ill  II  nositioti   to  ltiis«'  ii  cliiiiii   tor 
tliiliiii^ics  upon  tlic  til;  f  tlijit  !i  cliiiii;-'!'  of  jiositioii  wiis 

lllilllc. 

Tlio  cfiptjiiii  tfstiticd: 

if.  For  what  season  did  you  outlit  tin-  schooner?  k    14 lo  line 

A.  I  intended  to  stay  to  tlie  middle  of  September;  t'nmi    t'io.     ' 
tlie  l(»th  to  the  middle,  in  lU-riiif;  Sea.     I  stayed  tliere  the 
year  before  in  a  small  schooner,  and  in  th'*  schooner  1  was 
not  scared  of  the  wind  and  weather. 

Hut  on  cross-cxiiiiiiii.itioii  In-  tfst':ii«'(l  that  Ik-  pnic- '{••  "H".  line 
ticiillv  jiltiiiuloiKMl   sciiliii;;-  ill   tlic  ycjir  ISSK,  <mi  tlic     '''' 
.'{(1  of  ScptciiilMT;  iiiitl  tcstifviiio-  furtiicr: 

<»».  You  left  the  sea  on  the  LT.th  of  August,  islMtf  it.,  ins,  line 

A.  li.id  I  think:  we  (|i'it  sealinj; on  thelMd;  we  were  some    "'• 
two  or  three  days  jiettiiifj  (mt. 

'I'lu'  only  cxpliiiiiition  lie  makes  for  Icnviii-"' on  tluit 
(liitc  is  tlint  lie  tlioii^ilit  he  Innl  s.-als  cnonniriinil  had 
made  money  eiioii^li. 

lieariiiji'  ti|ioii  tlie  extortionate  claim   tor  ■'^a.'J.lST, 
on   aceoiint   of  dania;;-es   siillered   l»y   reason    of  tin' 
iiiterrniitioii  nf  the  voya^^c,  the  testi'moiiv  of  .laeoh- 
seii,  who  owned   the   M'nniK-  in   the   vea'r  lSi)l,  ami  t'h.i  1 1  \o. 
who  was.  on  the  I.'jtli  dav  of  .lidv.  in" tin-  vear  IS'M      '!'  ^  "••  ^ 
Wiiriied  from  the  Ueriiij-' Sea  in  accordance  with  the    •>'«i'i-'"t, 
terms  of  the  modus  vivendi  of  that  v.-ar.  is  worthy    ^(^^ 
ot    note.  ■  ■       in  IS'Jl. 

'i'he  British  (iovt'iiinieiit  s"iit  commissioners  to 
Victoria  to  pay  the  sealers  for  the  losses  incurred  l»v 
reason  of  l»eiii;i'  deprived  of  hiintino'  in  the  sea  in  the 
yearlS!H,aiid  this  witness  received  from  the  (iov- 
ernment  id' (treat  Hritain  the  sum  of  n.s.Oimi  for  dam- "•• '"7.  line 
a<;cs  surtered  Ity  tiia  .■^ihnoiins.  '"' 

No  testimony  is  found  in  the  record  to  hase  the 
(daim  for  "time  and  expense  of  owner,  n20(»,"  upon. 

The  (Jovernment  of  the  Tnited  States  is  lialile  for 
the  charter  value  of  the  M'uiuir  from  the  ITfli  dav  of 
Auo'ust  to  the  -.'(ttli  or  25tli  of  Au«-ust,  and  for" the 
viihie  of  41 S  seal  skins,  ■_>  onus,  and  the  spears  of  the 
Indians. 

»  s 56 


r 


'XVk 


'      t 


the  triumph. 
Claim   No.  18. 

Tlic  only  witiu's."*  wild  liiul  a  ju'iNonal  kiiowlcdiii- 

of  the  orniiTt'iu'cs  in  Hcriiio-  Scm  rcliitiii;^-  ti  tlu'  Wiini- 

iiifjl' of  tl»'   7'/v'»my'//  WHS  ( 'iijit.  Ihiiiifl   Nlrl.cjiii.      His 

"•io."*'""''nHi(liivit.  iiiii(U-  oil  the  8tli  <liiy  of  Aujriisf.   ISK'.I.  iit 

\'ictoriii.  was  n-ad  into  the  lit'conl. 

He  states  that  lie  «'ntcr('<l  Hciiii;,''  Sea  on  the  Itli 
(lay  of  July,  ISSH;  was  Itoanlcd  liy  an  oUicci  of  the 
I'nitcil  States  revenue  cutter  Itithiinl  titisit  >«n  the 
11th  (lay  of  .Inly,  who  told  him  that  if  he  s'loiild 
a<iaiii  hoanl  the  vessel  and  find  sealskins  he  v^oiild 
seize  and  confiscate  the  vessel  and  catch.  ( )n  accnMit 
(»f  this  warnin;;'  the  alliant  states  that  he  tenniiinteil 
his  Vdvajicand  retnnieil  to  the  port  <>f  N'ictoria. 

No  |iro|ierty  was  taken  !iy  the  cutter,  and  her  oiil\ 
claim.  Iieside  the  usual  items  tor  '•ille;:al  Ixianlin,;-, 
leiiiil  e\|ienses.  and  ex|ieiise  of  uw  iier."  is  for  |iros|(e( - 
tive  catch 

K.  ( '.  Raker,  one  of  the  owners  of  the  7V//(///y*A. 
testilied  on  direct  cNaminatioii  re;:iirdin<j'  the  iiistrnc- 
tioiis  jiiven  to  ('aptain  .McLean  relative  to  the  dura- 
tion of  the  voyaj^c: 

R.,  U20,  line     (^.  Did  yixi  ffive  liiiii  any  ins,'  Mictions  as  to  tlie  time  that 
"■  he  Hhoiihl  stay  in  the  scaf 

A.  Wftl,  (»/'  (■(>«(•«('  /  ((/((  not  rrillj/  pimitire  as  to  iiintr<iv- 
fioiis.  1  was  sini])ly  one  of  the  partners  iiiana^iiiK  the  anairs 
of  tlie  sciiooiier.  and  a  puxl  deal.  nv'cesKarily,  would  he  k-ft 
to  iM(!li('an"s  di.scretion,  liccause  it  uas  lie  that  <;ot  nie  to  no 
into  that  venlai'e.  SaturuUfi  I  iroxhl  hvijituteil  Ini  liin  riport 
OS  to  Ihr  circumntHHcrx  irlien  hv  irttx  to  rctiini,  l>iit  it  wasdis- 
tinctly  understood  between  him  and  inyKelt'  that  he  wunhl 
442 


THE   TRIUMPH. 

ii'imiiii  tlu'i«  to  tlM'  v«'iy  liiHt  of  tlu'  HeiiHon  thiit  lit>  i-onld 
catch  st'iils,  .soastoiisfi'itaiii,  if  |Missibln,  liow  long  that  wa- 
son  really  ilul  and  coiilil  last. 

(}.  VVas  then'  any  iinilt'istinMlinK  at  all  to  that  cttwt? 

A.  Yps;  III'  was  to  rt-niain  tlnMV  until  late  in  September. 

<^  That  was  fully  uniliMstrnxl  ? 

A.  Fully  unilcistood  hctwt'i'n  him  anil  mo.  In  fact  hu 
wftiiti'il  to  know  somethinj,'  about  what  became  of  the  Heals 
attcr  they  left  the  sea,  including  the  Piibilof  Islands.  //,- 
inniti'il  to  tjo  on  n  liltlv  loi/niiv  of  ilixionrii  to  n  cntaht  i.vtfiit, 
ami  fnitr  Ihriii  mitl  inoliahiii  >h>  noiiir  uniliiiii  ill  Ihr  Hinnv  lime. 

<;.  It  was  uu-ntioucd  between  vou,  or  understood,  that  he 
could  stay  there  until  pretty  late  in  September? 

A.  Oh,  yes.  The  previous  year  he  had  conu!  back  I  to 
\  ictorial  on  the  10th  of  Septemi»er,  and  he  had  everything 
on  board  that  would  emible  hiii?  ti.  stay  there  until  the  end 
of  the  year,  for  the  matter  of  that. 

Upon  this  testiiiiiuiy  in  tin,'  Argument  for  (Jivat 
Hritiiin  a  claim  is  madi-  tor  a  si'iismi  cxtt-nilino-  to 
Octulii.r  1. 

It  the  .■'stiiiioiiy  of  an  owner,  who  was  iu-mt  in 
Hcrin;;'  .S|.ji,  to  tin"-  i-th-ct  that  In-  had  instnictiMl  his 
cnptaiii,  who  was  a  man  of  hui;:'  i-xiicrii-nci'  in  tho 
sealing-  husini'ss,  to  stay  in  tin- si-a  as  lati-as  possihh', 
is  to  outwi-iyh  till-  |)ositi\i'  stafi  nu-iit  of  that  captain 
that  the  si-alin^'  season  IcrminatiMJ  towani  the  last  of 
Aii;>nst,  the  opinions  of  all  fhinkinj;-  minds  re;>ardino- 
the  wei^iht  to  he  ;:iM-n  testimony  of  this  natnre  wiU 
he  disre^-arded.  .\jiain,  if  the  statenu-nt  of  a  witness 
interested  in  the  resnlts.  to  the  etfect  that  he  instrncted 
his  ca|>tain  to  j-o  on  "a  little  voyajic  of  discovery"  to 
trace,  if  possihle.  the  seals  when  they  left  the  IVihilof 
Islands  to  proceeil  on  their  soiithwaril  jonrne\ ,  and 
"prohahly  do  smne  sealinji-  at  the  same  time,"  is  to 
lie  taken  as  a  basis  of  estahlishin";-  the  dnration  id"  the 
sealin;--  voya«>('  in  IJerinji'  l^ca,  a;iainst  the  testiinonv 
so  clearly  estaltli'.hin<i-  the  termiiuition  of  the  sealin'o- 
season  hetwei-n  the  -JOth  and  2r>tli  of  .\n;>iist,  there 
would  have  l»een  little  need  of  examinin<>-  to  such 
•ireat  length  so  many  w itnessi-s  concerning;'  the  <ien- 
eral  subject  of  the  ordinary  jjeriod  duriny  which  seal- 


443 


444 


THE   TBIUMPII. 


U.,  IWl 
46. 


liiii' 


:{o. 


liiii' 


R.,  1451', 
40. 

li.,  it:ti, 
21. 


lino 

line 


ill;:    ))|M-i'iititiiis    «-«>iil<|    Ih-   niiitiiiii*-<|    with    pi'otit    in 
Mcriii^i'  Sni. 

<'ii|)t.  hiinifl  .MrL«'iiii,  to  wiiiiiii  WHS  iiitniHffd  tli)- 
liftcniiiiiiitiiiii  iit'tlif  <liiriitiMii  i>\'  tlir  voyii;:-!',  iirtnril- 
iii;:  to  tlu'  tt'stiiiiMiiy  nf  Miikcr  liiiiis«>lt',  who  siiid.  '•  I 
would  li*>  ;;iii(|t'(n»y  liis  |-«'|M»rt  lis  til  tlic  ciiTllliisfiilircs 
wlifii  lif  W!(s  til  rt-tiirii :"  wlini  i|iii-stiiiiiiMl  si.s  tn  Imw 
liiii;;'  limitiii;;'  niiilil  Im>  i-iiiitiiiiii-)|,  stiitcil  in  mi  iilliilii- 
vit,  iiifiilc  ill  I.'^!I2  : 

nfriii;:  St'ii  hiintiiit;  .sciisoii:  I  imiially  «'iitt>r  tlie  Koriii^r 
S«'a  iliiriiif;  tlu*  t'liri-  |iiii't  iit  .Inly  and  l<'avi>  the  IumI  of  AiiKiiNt. 
Tli<>  Hfa  )i«>riiiiu>H  (iHi  i'<iiit:ii  tii  inakcit  prutitalili^  to  limit  seal 
at'tfi-  August,  anil  it  is  the  jirartict'  t'or  nearly  all  M'hscIs 
I'lipi^i'il  ill  liiintiii^r  seal  tii  Iravt-  aliuut  that  tiiiit*.  A  I'l-w 
Niiiiii'tiiiii's  reiiiain  Iat4'r  tor  tin-  |)iir|iiisi>  of  trying  to  raiil  tint 
Islands,  lint  thcri'  arc  ho  lew  days  that  the  sea  is  sniooih 
<'iioii};h  to  hunt  alter  Septeiiilier  I  tliat  it  does  not  pay  to 
lenijiin  any  lon<rer. 

('ii|tt!iiii  .McLi-iiii  was  iiiiisttT  lit'  the  Triiiiiifili  mi  a 
vityii;i<'  ill  ISHS.  anil  tin-  ilftailcil  ratrli  id'  tin-  vi-ssi'l, 
wliirli  Wiis  ti'stitiril  tn  lt\  liiikiT,  slniws  that  tlic  last 
ila\  tlic  'I'riiiiiifili  liiiMti-il  ill  tliat  vt-ar  was  tin-  'JDtli  id 
.\ii;;iist.  .•mil  tliat  the  Imafs  witi' iint  Inwi-rcil  lii-twi'iii 
that  day  and  tin-  1  Ith  id'  .\iii>iist. 

This  iiiliiniiatiiiii.  taki'ii  diriTtly  I'rinii  tin-  Imnks  id' 
Cajdaiii  .Mrl.i-aii.  tii;ji-thrr  with  his  statfiiii-iit  that  tlic 
scaliii;:-  season  rlost-s  alioilt  tin-  hist  id"  .\ii;;iist,  loii- 
rliisi\cl\'  shows  that  the  Ininliiiii  \ii\a;ii'  id  the  '///- 
iinif>li  would  have  tcnninati'd  at  the  iisiiid  time,  and 
that  in  deterininin;;'  her  eh.-irtei'  value,  no  reason  is 
I'oiind  ill  the  exideiiee  tor  exteiidiii;:- the  period  diirili;: 
whieh  she  would  have  hunted  lieymid  the  ordinai'N 
limit,  lixed  as  lietweeii  the  ".'Htli  and  "Jfitli  of  .\ii;;iist. 

The  mana^^iiiy  owner  id'  the  Ti  iiim/ili  had  coiitrarte.l 
to  sell  to  II.  hielies  iV:  ( "o.,  of  San  Kraiicisni,  the 
catch  of  the  vessel  for  the  year  l.ss'l,  at  >i<;.L*'>  for 
each  skin  delivered,  and  sold  the  catch  made  mi  the 
viiya;;e  to  neriii;'-  Sea  at  that  (i^iiire. 

If  there  were  aiiv  conditions  attached  to  the  con- 


TiiK  rKirMPii. 


445 


tnicf  nt"  II.  Licltcs  i\c  i'n.,  flicy  wdt'  in  ii  |H)siti<in  to 
jHTt'unn  their  pint  of  tlu"  r(.ntV!U't,  inul  iiltsoliitch  did 

liiivc   II   vessel    iit  Sinid  I'niiit  to  n ive  tl'e  eiitcli  nt'K.,  H31,  line 

tlie  Tiiinii/ili  made  on  the  vii\  ii^ie  t<»  lleriny  Scii.  '"' 

In  the  chiini  for  the  |in)s|iertive  e.-itch  of  tlie 
Trhiiii/ili,  wliieh  the  I'nited  Stiites  niaintains  etni  nut 
lie  idliiwed  in  any  evi-nt.  the  \ahie  phn-ed  on  «'a('h 
skin  is  Nil. 

There  is  n<>  testinmny  in  the  Uecord  npnn  which  to 
Itase  the  iteMi>*.  "le^ial  and  othi-r  ex|ienses.  X'2h{)" 
anil  "time  and  expense  nt'  owner.  ><J(I(»;"  and  no  tes- 
tininiiy  is  eited  in  the  Ar^iinnent  on  Itehalf  of  (Jreat 
Hritain. 

The  statement  of  the  money  expended  tor  tlie  vov- 
H^re  of  the  7'iiiiiii/)li  and  of  the  advances  made  to  the 
crew  is  ipialitied  liy  the  testimony,  showing' tliat  the  l{.,  li;u.  line 
Tiimiiph  hunted  aloii;:-   tlic  coast   on   her  vo\a;ie  to    '''' 
Merin;>Sea  and  returned  to  \ictoria  the  Wll  seaUUins 
taken. 

The    himters    had    not    lieeii    settled   with   for   this  "•.  H-'*- 

catch,  and   the  ai mt   liiially  paid   is  not  separated 

with   reference  to  whether  the   moiic\-   was   pjiid   for 
ser\ices   performed  on   the  voxa^t.  to    Meriiii:-  Sea  or 
for  services  in   Merin^i'  Sea  and  upon  the  leiiini  \o\-li-.  1127,  line 
'.\yn:     Certainly  the  amount  paid  to  hiiiiters  was  paid    ""' 
foi-  skins  taken  aiiddeli\ered  to  the  owners,  aiitl  has  no 
reference  to  the  claim  presented  to  this  ('oiiimission. 

The  owners  of  the  7'ni(iii/ili  would  Im-  entitled  to 
recover  her  charter  \aliie  for  the  period  lietweeii  the 
lltli  day  of  duly  and  the  -Jotli  or  2.'ttli  of  .\ii^iist, 
estimated  on  the  l»a.-«is  stated  in  the  |iortion  of  this 
Ar^iiinieiit  relatin;;'  to  the  measure  of  dama<i'es  for  the 
vessels  warned  out  of  Merin;;' Sea  an<l  whose  vo\a<ies 
were  therefore  internipted.  if  a  citizen  of  the  Tnited 
States  had  not  heeii  interested  in  the  vova;;'e. 

'I'lie  I'liited  States  contends  that   l)ani«'l   .Mcl.ean,  "••'""' ''»'■ 
who   was   the  owner  of  twent\-two  shares,  or  oiu-- 


il 


44(i 


THE   TKII  MI'll. 


tliini,  lit'   tilt'   TriiiiHiili  niii   Ito  nwnnlnl  im  .hiiiii  I'nr 
iliiiiiii;.''«-s. 

'^s^'cu'i'ii'i      •^'•■'•<'""  'hmiiiih'  11  iiiifiiriilizf»l  fiti/fii  nf  the  I'liitcd 

No.  IS;  Kx-Stiitt's  ol"  Aiiicrifn  mi  the  otii  tiny  of  ( h-tolttT,  lSSi>. 

i'tii'.'""'  '"'       WitlnMitMl»t)iiiiiiiytlu' roiisi'iililf  tin-  I'liittMl  Stntc^. 

iiikI   flic  I'liifcil   Stiitfs  Mot  liiiviiiy  niiisiiitcil   to  Iii> 

tlil'KW  iii;iiilV  !ill(';;iiilic«'  tn  flicirC  Mtvcriiiiifiit,  .MrLffiii, 

li.,liM7,  Unciiii  tlif  Kith  iliiy  ut'  Ortnltt'i',  IHSC,  niiidf  ii|)|)liniti<iii 
tor  iiii<l  n-ffivctl  piipfrs  (Irrliiriii;;' liiiii  tolx-ii  iiiitiiriil- 
i/fi|  siil)jcct  tit'  (iri'iit  Kritiiiii. 

H..  i(t:'i.  litm  On  tlitf  7tli  tiny  tif  St'|»tt'iiilifr.  Isii-J,  lit-  iiiinlf  jni 
iitlitliivif  that  lit*  was  ;i  iiatiinili/fil  Aiiifrit-aii  t-iti/fii. 

'I'lit'  laws  lit'  tilt'  riiitfil  Statfs.  tlif  tlftMsitni  ut'  it> 
courts,  aiitl  the  fstaltlisln-il  law  ut'  iiatimis  Itfariii^ 
ii|iiiii  tilt-  t-iti/.t'iislii|i  lit'  .Mflit-aii,  ami  liis  rii^lit  tn 
rt'fiivcr  tlainayt's  I'nr  an  act  ftminiitH'il  in  vinlatinii  nt 
tJlc  siivfri'i;;ii  ri;;litsiit'  tilt- ( iiiVf|-||iiiiMlt  nt'  flit-  I'liiti'il 
Sfati's  ami  tlit-  iniini('i|ial  law  nt'  tlit-  I'Diuitrv  tn  wliitli 
it  is  flaiiiifti  111'  nwi'il  allt';iiaiifi',  liavf  lit't-n  lu'ri'tuiiiif 
ilisfiisscil  at  li'ii^tli  ami  tlif  |iiisitinii  nf  tlu'  rnifcil 
Statt's  tiffined. 


r 


THE   ARIEL. 

Cl-AIM    No.   1!». 


Tlif  A  rill,  ii  v«'.xs('I  ut"  !H».;t. 


>  nyistcrcfl  tons,  entered  '''■•  "nit,  line 
iiiiiiiik  i;..i'ii;i.iiiii'H 


Hciiiiy  Sen  on  til*-  l-.'rii  <l;iy  «,i  .iiilv  tliroiiiili  [ 
I'iiss.  |(r»MMM'<l«'iI  fn  file  siiiitli  !iii>l    vest  of  the  l'nl»ilot'„''".'.'J, 
IsIiiiKl.^:   Iiiiiiti-il   until   6  o'cloi  k   of  tlic   iiioniiiiy'  of 
.liilv  8(».  liiiviiMf  scciin'il   ii    ilnit 


liiiu'  MCt  I  iilskiii> 
for  IiHlinn  liiintft'.s.  n 
>o;il,  III  11 1  ji  crew  of  2"_* 


She    CillTUMl    i;    llojits,  1    (• 
ciiiioi'    to    1m'    used   ii.s  ;i    stern  1 
wliitcN,  2  hxliiiiis.  iniii  ii 

riiilcr  .liitc  tlif  aOtli  «l;iy  ol  .Inly  tlic  l»ookof(  . 
fain  niickninn  cmtiiins  tins  cntrv."  niiidf  jit  the  tin 


|{..  tlHi,  lint' 

•JH. 

Ii..  I  Hill,  lines 


Ill) 


At  (» ii.  III.  Aiiu'iimii  ciiltfr  h'nuli  came  al 


oii;rsi(h>  ami  .sent  Ii..  \uvj,  u 


(iniit'iM  on  Ixiaiil  to  cxainiiM'  ami  st-airli  tlu' vcsMt'l;  niiidc     ii! 
iii(|iiirU's  as  t.t  tiic  iiiiiiiIkm  of  crew  on  lioanl;  w  liiit  tini«  wf 


ciiiiu'  into  \Wv\\\fi  Sea;  ami  llic  mniilMM  i.lsealsk 
They  al.so  tof     us  if  i  iiiiy:lit  with   liesli  si 


IIS  on  lioanl. 


-  --     kins  on  hoard  we 

would  lie  sei/ed.     Also  repoiled   liininy    siized   sclioniiers 


IJIavk  IHdnioinl.  J'lilliHinltr.  and  Mlii 


other  schooners  in   tl 
iiiiiriii;!  iiitli   i:>ii  xkh 


»/V,  and  having;  searched 


le  sea.     .1/  .''  o.  in.  oil  lioats  mit.  iiiid 
M.    Had l.v  scared  t]iron};h  tlie  day,  as 


the  cv.tter  appeared  at  one  time  to  lie  letiirninv' to  iis,"aiid 
our  Ixtats  had  pii  tar  away,  contrary  to  th<'ir  orders  when 
leaviiifr  the  vessel. 

'riiis entry  disrloscs  tlint  the  Aiitl  lowered  lier  lioats 
\yitliin  tlire  'loiirs  after  slie  was  waniecl,  iind.  as  tes- 
tified liy  (  aptain  Mnrknani,  flie  iM.afs  were  lowered  "••  iiii;i.  line 
every  day  fliereaffer  up  to  and  iiielndin^'  flie  niorninji- 
of  the  l«tli  of  .ViijiU.st,  wlieii  the  weather  would 
jierinit. 

Kroni  the  time  of  the  wariiiii<>-  liy  the  riiited  States 
revenue-flitter,  up    to    and    iiicludiii«r    the    17fh    of 

447 


*^,  Vt    Ni'll 


448 


TlIK    AKIEL. 


Auji'tist,  tlu'  Imiitcrs  of'  tlu'  Aiiil  lind  tjiki'ii  4S5  soils, 
iiii  iivcnij^t'  (if  '26  \>vr  diiy.  From  tlic  I'Jtli  diiy  ot' 
.liilv  until  the  3()tli,  ii  iicridd  ot"  i-i^ilitt'i'ii  days,  34(1 
seals  iiad  Ik'cii  tiikt-ii  hy  the  liiintcrs,  an  avcraiic  ot' 
l!l  seals  per  day. 

('a|ttaiii  Hueknani.  one  ot   the  owners  ot"  tlu- vessel 


aii:l  a  witness  \\\   Ins  o\v 
examination: 


n  lielialt"  was  asked  on  eross- 


R.,  lUiS,  line      t),   IHtl  i/tiit  nut  sriil  rrvrji  iliii/  hcfirvrii  tliv  Hoth  ilaji  of  •hihj 


u 


(Did  tlir  'Joth  (liiji  of  Aiiijiist . 


A.   /  //./(•(■(•( 


iiiil. 


<i».  Kvory  time  ,v«»u  could  lower  your  boats  you  had  tliem 
out.  did  you  not ' 

A.  I  do  not  helicve  1  could  say  that. 

i).  Coidd  you  not?  Then  I  will  relVesli  your  recollection. 
Did  you  testify  here  once  hclore  that  every  <lay  you  could 
lower  your  boats  you  did  lower  thcin  ? 

A.  1  don't  Ivuow  it  I  did.  I  don't  remember  about  it.  I 
can  only  say  wiiat  we  were  doiuK'  by  lookiii;i>'  thrim^h  this 
diary;  tliis  is  correct. 

^).  Vou  had  that  diary  when  you  were  ttn  the  stand  before, 
did  you  not  ' 

A.  Well,  any  statement  1  make  from  this  diary  is  ciu-rect. 

<i».  U'(7/  jioii  iitisircr  thr  iinvxllnu.'  Did  i/oii  loircr  /four  boats 
ivcrji  iliifi  that  j/oii  could.' 

A.   /  tliiiilc  irr  did. 

<i).  And  your  (ilaim  now  is  that  you  went  oil'  the  sealing 


oiMid 


s,  is  It: 


A.  That  is  our  claim;  from  irlmr  I  kin'ir  it  was  sjood  se.il- 


iny  fjnuiuds. 


Tl 


lo  owners  o 


ftli 


s  \cssel,  llotWl 


tlistj 


ndni 


;;tl 


le  iinm- 


Iter  ot' seals  taken  alter  the  waniinu'  iiiven  liv  the  ciit- 


fer   aveiimci 


I  •_'«; 


Iter  (la\ 


rliile   the   niimiier  t;ikeii 


lu'tore  ;ivera;^ed  luit  lit  per  day:  and  iiotwithstand- 
in;;'  the  testimony  (d  tlu-  eaptain  that  he  loweretl  his 
boats  every  day  that  they  eoiild  lie  lowered,  and 
himtt'd  tor  seals  between  the  .'{(>th  <d"  .liilv  ami  the 


(lav  that   he  left  tlu 


II,  ask  from   the  (ioveniment 


R.,  1472,  line 
44. 


of  the  I'nited  States  damajics  which  they  (daimed  to 
have  sntfere(l  .)v  reason  id'  having"'  partially  obeyed 
the  waniin^i'  and  left  the  locality  which  the  ca)ttain, 


THE   AUIKI. 


449 


wlio  liJid  never  liet'ii  in  Heriiiy'  Sen,  "hin'ir  was  jiood 
sealinii'  ^^toiukIs." 

The  testimony  nl)un»linitly  sliows  tlie  t'iict  thai  the 
Arii'l  continiietl  lier  st'alin;;- voyajic  until  the  IStli  dav 
of  Aiijiiist  as  thonji'li  lU)  waniin;;'  liad  heeii  <;iven. 
iijion  wliich  (hiy  tlie  captain  «'iit<-re(l  in  his  l»ook: 

Have  MOW  (let'idctl  to  Iwavc  the  sea  at  once,  as  it  is  i|iiitei{,.  iii!l,  linr 
clear  tliiit  many  sei/iu'cs  will  be  iiiatlu  tliis  season;  perliaps    ''>i. 
all  the  vessels  that  reinain  in  the  sea. 

Tlie  I'nited  States  deu\  all  lial»ilitv  tor  anv  dam- 
apes  alleji'ed  1o  haxc  accrued  prior  to  the  IStli  da\  oF 
Anpnst.  and   coMlideiitly  rel\   upon   the  testimoM\  ol 


th 


le  claimants  themselves  to  estalilisli   then-  position 

that   no  heed  was  ^iven   the  warning'  until  the  iStli 

iili'iist:   and  no  damaiji'es  were  snstaiiu-d  prior 


(la\  o 


tA 


to  that  da\ ,  tor  the  captain   sa\s  that  he  lowcreil  his 

boats    ever\'    sealini:'  da\    iiii    to  ;iiid    incliidiiiii-   the  "•••'•>!',  1 

morniii"-  ot   the  iStli. 


10. 


Th 


le  memoraiKliim  or  lo^'  prodiiceil  mm!  not  contain 


a  record  of  the  latitude  and  longitude  of  the  slii]»  from  k.,  1470,  n 
the  1st  da\   until  the  "Jlst  da\   of  Auiiiist. 


;i(i. 


Q.  Ami  IVom  the  1st  day  of  Aiiy;nst  until  the  I'lst  day  of 
Au}>ust  you  have  not  entered  your  latitude  and  loiifjitude.' 
A.  1  think  not. 

The  onl\  testimoiiN  iiearinii'  ii|ioii  the  position  of 
the  ship  after  the  wariiiii;:-  is  that  from  the  position 
of  latitude   .')<!      ."{fi'.    lon;^itude    17"_*      Ol  j'.  occupied  H.,  1  Hi 


!,  lint' 


When   warne 


tl 


le  \»'SS( 


1  moved  to  latitude  ;")."•"  d." 


lonji'itude   l(!!l^  '>.">'   on  the  1st  day  of  Aiijiust.     The  |{..  i4(i;t,  li 
lo<i'  states  that  a   huntiii"'  Itoat  with  its  hunters  was 


lost 


upon 


that 


Mav. 


1' 


roll! 


that  t 


line  nil 


til  tl 


le  eiitrv 


tiS. 


of  Au<iust   19,  no  entry  is   made  showin;:'  the   jtosi- k.  ikm,  li 
tioii   occupied   hv  the  vessel.      However,  the  ca|ttain 
testiiied  that  he  from  that  positiiui  held  fi'eiierallv  in 
the   direction  of  Ho<;-oslof  \'olcano   until   the  .''(tii  of 


A 


un'ust,  at  wliicli  time  an  eiitrv  was  made  in  the  loy  u.,  ittct,  line 


that  tlu 


'  vessel  was  makmj''  111 


thed 


ireeti<»ii  of  Hoifos 


■l.'i 


n  s- 


450 


THE   ARIEL. 


R.,  1464.  lot".  After  Aufiust  a  tliere  is  no  j'ourst'  n'cnr»l«>(l  in 
tiif  nii'inonindnni:  Imt  tlu*  entries  show  that  the  v»'s- 
sel  was  sealin<>'  constantly,  and  make  reference  from 
time  to  time  to  tiie  scarcli  after  the  hinitin;"-  hoat, 
showinfi'  tliat  the  vessel  must  have  remained  in  the 
vicinitv  of  the  position  oi-cnpied  Au<»'ust  l,the(hiv 
upon  which  tlie  hoat  was  lost. 

(hi  tile  latli  of  Anjiust  the  .seals  appear  to  have 
liccii  so  plentiful  that  the  captain  made  tiiis  note  in 
his  hook:  "Manv  seals  .seen  diirinj:'  the  day  from  the 
vess«'l." 

The  cour.se  from  ;")."»  (•"»',  l(J!l "  "•")'  southeast  toward 
Moji'oslof,  which  was  the  course  of  the  vessel  from 
the  Tttli  of  Aujiust  to  the  iHtli,  when  the  decision  was 
made  to  leave  the  sea,  and  iluriiij'-  which  time  the 
liuats  were  lowered  everv  <lay  that  Iiimtiii;;' was  pos- 

.VrKuiii.iitoiisilih.,  is  directlv  over  the  "round  covered  UvCautaiii 

Im-Iiii11  oI  ,,.  1         •     ■    •        1  •     •  1  •   ••  •      1 

(iieiit  liiii- .Miller,  who  IS  citetl  as  sustaimn;;' the  position  ol  the 
claimants  as  to  the  location  of  the  "liest  sealing- 
<:ioiinds;"  directK  over  the  ;.;roiind  covered  Ity  the 
Muiji  Kllin  in  hSfSfi,  claimed  in  the  .\riiument  on  l»e- 
lialf  of  (Jieat  Britain  as  haviii;^'  occupieil  the  "  hcst 
sealing;  ^iiouiids :"  directly  over  tlu-  jjromid  hunted 
i»\  the  Tlirn.sii  in  188(i,  which  vessel,  it  is  stated  in 
the  .Vijiumeiit  on  helialf  of  (Jreat  Hritain,  occu])ied 
the  "Itest  sealiiiii-  jiToiiiids;"  and  is  directly  over  that 
portion  of  the  Herin^i-  Sea  which  the  other  claimants 
''';;>''•.!'*• '"'"assert  to  he  the  area  hahitually  resorted  to  l»y  all 
seahrs  anil  well  known  of  all  men  eiijiajicd  in  the 
business. 

Locate  on  a  chart  the  position  occupied  Ity  the  Arlrl 
on  tile  l>t  of  Aiijiust — l(i;t  ,").")'.  It  is  due  south  of 
the  I'rihilof  Islands.  If  the  Argument  on  behalf  of 
(iieat  Ihitaiii  attempts  to  estai»lish  any  fact  it  is  that 
this  locality  is  tlu'  "best  sealiii;i>'  ^iroimil"  in  Heriii;j- 
Sea. 

At   ita<>e  (!.'5  of  the  Argument   ( 'aptain   Kayiior   is 


am,  p.  il:i, 
line  10:  |i. 
tiO,  liur  L'd. 


ID  et  siM|. 


I  'n 


THE    A  KIEL. 


451 


C'itt'd  as  a  raptaiii  wlm  svalcd  on  flu*  "Ix'st  scalinf"' 
}in>uii<ls,"  and  at  line  "J(!  his  location  is  stated  as  alxmt 
170"  west  lon«>itud«'  and  f*")^  nortli  latitude.  Hut 
when  ("aptain  Hiicknain  was  oc«'U|t\in<i'  the  position 
l<>;i'  5.')'  and  '("i^  ().">',  wliich  is  almost  idcnticallv  tlic 
same  location  in  H('rin<i'  Sea,  tlic  ;iTonnds  suildcnlv 
Ik'coimc  pool'  scalinji'  jiTounds. 

Ikt't"crrin<>'  to  one  of  the  so-called  ini<;Tation  charts, 
tins  statement  is  made  in  the  .Vrjiumeiit  at  pajic  oK, 
line  1: 

It  suHUiciitly  indicates,  as  well  as  the  migration  eliart 
first  releiiiMl  to,  tlic  comparatively  limited  siiace  between 
the  jiass  of  the  Aleutian  Islands  and  the  l'ribih)f  group  in 
which  seals  are  found. 

( "aptain  Hncknam  lestilied: 

(}.  You  were  nearer  the  line  rniniin;;-   from  the  I'rihilof '>••.  l'7'Miiie 
Islands  to  I'ninnik  I'ass  after  jou  liatl  been  warned  than 
yon  were  on  the  day  on  which  you  were  warned f 

A.  Yes;  it  would  ln>  nearer. 

i).  Now.  you  have  told  about  heariiif;'  where  the  good 
sealing  was  down  at  N'ictoria  before  you  went  up  there. 
Did  you  hear  that  the  sealing  grounds  were  between  Ini 
inaU  I'ass  a' .'  the  I'ribilof  Islaiuls.' 

A.  No;  1  iicisrd  they  used  to  be  there,  but  the  seals  had 
changed  up  to  the  west. 

Tht'  positifin  assumed  l»v  the  claimants  who  did 
init  heed  the  warnings  o-iveii  l»y  the  reveiuie  cutters  ot" 
the  I'niteil  States,  l»ut  on  the  contrarv  contiinied  their 
vo\  iiM-es  practically  until  the  close  otthe  season,  is  that 
altliou;;li  there  are  localities  in  the  Herinji-  Sea  which 


iiO. 


ai'e 


known    as    the    "Itest    sealiui>'    "rounds,"   th 


ese 


fiTotnids   were   never   occupied   Ity   f/nir  ships,   even 
when  the  location,  Wv  latitude  and  huiyitude,  corre- 


.ith   the  location  ot'  tht 


se  so-called 


spomis  exjictiN 
"sealin^i'  grounds." 

The  ilijih  ( 'ommissioiH'fs  are  asked  to  find  tor  one 
claimant  that  his  ves.sel  was  seized  and  her  operations 
arr«'sted  while  huntinji'  in  the  most  desirahle  place  in 
all    the  vast  expanse  of  water  formino'  Herinji-  ^ea, 


M 


452 


THK   ARIEL. 


III.-.,;. 


H.,  70:i 
II. 


I{.,  701. 


K.,  "(Hi, 
4d. 


jK'rcliiiiU't*  the  cliiiin  Ik'  <nie  t»f  total  Kiss;  jiimI  to  find 
tor  iiiiotluT  cliiiiiiinit  that  his  vessi'l,  althou<>li  hunting' 
oviT  th«'  saiiu-  aiva,  after  the  uiilieecU'tl  \\an»in<>',  h-tt 
the  desirabh'  sealinj;'  jiroiiii«ls. 

The  testiiiionv  of  ('aptaiii  liuckiiani  is  t'litith'd  t(» 
no  wi'i^ilit;  on  tlie  Record  lie  has  convicted  himself  of 
the  willful  iiiteiitiuii  to  deceive  as  to  the  voy;<^e  of  the 
Ariel,  and  his  claim  should  l»e  considered  as  an  attempt 
to  mulct  <laiiia;!es  from  the  (lovernment  of  the  I'liited 
States  for  the  interruption  of  her  voya;ie  fr<ini  the 
3(ltli  of  duly,  when  in  fact  she  continued  her  liuntin;;- 
operations  until  the  iStli  day  of  Au<>ust,  and  he  treated 
with  acconlin^ly. 

This  witness  was  calleil  first,  not  on  his  own  Iw-half, 
lint  as  a  witness  for  the  purpose  of  ^iviii;;'  testimony 
on  the  p'lieral  suliject  of  the  catch. 

liiif      ij,  Voii  were  in  tlie  Ariel  t 

A.  Yes. 

i).  When  (lid  yon  g<»  into  the  .sea? 

A.  I  (loiTl  know  tlie  date.     It  was  idxnit  the  lOtli  of  July. 

(f.  And  how  hitiy  did  you  stav  in  the  sea? 

A.  Came  out  about  the  Hdth  of  July,  1  think. 

i).  I  want  to  know  Mie  date  you  went  out:  liow  loii<>:  did 
you  li.sh  tlieic? 

A.  /  (hiii'f  kiKiir  the  iltiti:  The  xhiitu  honhs  (irr  hist, ami  the 
loj/  hook  also. 

His  direct  examination  dosed  after  the  information 
of  his  total  catch  was  elicitetl. 

The  witness  iiad  not  lieeii  called  in  the  claim  of  the 
Ariil,  liiit  the  first  ipiestion  asked  him  on  cross-exam- 
ination was: 

lint-     (^».  Von  did  not  state  that  you  went  out  durin};  the  month 
of  .Inly,  did  you? 

A.  1  sai<l  I  was  ordered  out  on  the  .■Mitii  of  .Inly. 

H'lie  (piestion  was  iiisiste<l  upon  and  the  witiie--' 
answered  "No." 

The  cross-examination  of  the  witness  continiiecl  at 
con.sideraltle  leiijith,  and  he  was  forced  to  make  the 
admission  that  he  had  made  an  afiidavit  stating'  that 


liiio 


THE   ARIKL. 


453 


he  li:i(l  left  tlic  si'ji  on  tlie  21.st  «»f  Aufiust;  and  finally 
wan  asked: 


Q.  Have  yoii  any  record  of  your  Bering  Sea  catch  in  1889,  K.,  708,  line 
such  as  yon  showed  nM>  for  the  year  I8i)0t  -"• 

A.  No;  I  haven't. 

Q..  Have  you  the  log  of  the  Ariel  for  the  year  188(1? 
A.  No;  I  have  a  kind  of  roiigli  diary. 
Q.  Wliere  is  that? 

lie  then  re(|iiested  iiis  iiu'nionuiduni   Itook  to  he 
{••iveii  liini. 

The  witness  was  reealle<l  some  weeks  later  and  tes-H..  M'>'.t,  line 
tified,  on  his  own  l»ehalf,  with   reference  to  the  ehiiin     '"' 
of  the  Aiirl,  directh-  from  the  memorandum  which  he 
produced  when  on  tlie  stand  hefore,  after  heinji'  pressetl 
on  cross-examination,  and  read   therefrom  the  entry  k,  i„j.>  nne 
under  date  of  duly  ;{(>.  '      ia. 

(^.  Yon  had  seen  tiiis  meniorandnni  just  a  few  days  hefcue  "•  ""^  ''"« 
you  took  tiu'  stand  on  the  L'3d  of  December,  liad  yon  not?         '"■ 

A.  I  had  it  in  niy  possession. 

(f.  And  yon  had  looked  at  it,  luul  talked  with  ccanisel  abiait 
it,  had  yon  not  ? 

A.  Vou  mean  the  diiv  1  appeared  here? 

Q.  Yes. 

A.  The  eonnsel  liad  it  at  tliiit  time. 

Q.  I'.nt  yon  liad  tidked  with  them  abont  it.  had  you  not? 

A.  1  lia<l  spoken  with  tliem. 

(^  Hut  you  knew  what  time  you  h-f't  I'.eringSea  when  vou 
were  on  the  stiind  before? 

A,  I  could  not  tell  without  the  diary. 

Q-  /"''/  I/O"  >i"f  I'lioir  tlhit  !iint  hail  tl'iol  iliari/  irhrii  i/ou  took 
the  stand  Ji rut.' 

A.   /  hnvw  that  raiinsil  hail  it. 

Uri'vv  to  the  testimony  id'  the  witness  on  the  23d 
day  of  Decemlier,  where  he  said: 

Q.  And  how  long  did  ycui  stay  in  the  sea .' 

A.  <'anie  out  ab<Hit  the  .{(Ith  <)f  .luly,  I  think. 

(}.  I  want  to  know  the  date  you  went  luit?  liowlongdid 
you  lisii  there ! 

A.  /  iloii't  kiioir  the  date.  The  ahiii^s  hooks  are  lost,  and  the 
lo;i  hook  also. 


I.'..  7o:!,  lino 
II. 


m 


454 


THE    ARIEL. 


\U 


l{..  Il5!t. 


U.,  Mil', 


Hut  litth'  wcijjlit  will  he  j>iven  to  the  tcstiiiioiiv 
of  this  witiu'ss  r('<i)inliii<^  tlic  movements  of  his  shi)» 
after  the  diite  of  the  \\iiriiiii<!'  lie  iiuHle  the  delih- 
enite  jittempt  to  estaltlish  that  his  ship  left  the  sea 
the  .'JOth  of  .luly,  and  it  was  not  until  forced  l)v  the 
cross-examination  to  surrender  his  memorandum  that 
he  dill  so,  after  liavinj^-  stateil  that  he  was  unal»le  to 
lix  the  date  hecause  the  hooks  were  lost 

This  same  witness  t-ndeavored  to  estaldish  the  fact 
that  he  intended  to  seal  in  Meriufi'  Sea  in  the  month 
of  ( )clohei'. 

Q.  For  what  time  did  you  oiitHt  tin-  vessel  ? 
'ill''      A.  To  iMai<e  a  l(»n}r  season.     We  intended  to  try  Oetoher 
sealing  in  the   Bering  iSea.  and  we  litted  ont  lor  a  hai}*' 
season. 

(}.  To  renniin  nntil  October  in  the  ISerin^  i^ea/ 

A.   Yes,  sir. 

(hi  cross-examination  he  testilied: 

'"'"  i}.  Wiio  j;ave  yon  infornnition  tiiere  was  {;ood  sealinjj  up 
tiiere  in  October"? 

\.  My  niate  said  he  liad  been  spoiien  to  by  a  wiialer  and 
one  of  my  hunters,  and  we  liad  heard  tiiat  people  of  the 
islands  thon<:'ht  that  October  was  a  {jood  nnintli  to  be  there. 

().  Had  yon  ever,  before  yon  went  there  in  ISSlt,  heard  a 
sealer  sav  he  had  been  up  there  sealinj;  in  (Jctober? 

A.  No. 

i).  <'an  you  aivo  me  the  name  of  a  ves.sel,  before  18S!>,  that 
was  in  lierinj;  Sea  in  Septcndn'r? 

.\.  1  was  not  aciinaintetl  with  the  business  before  1881); 
that  was  my  first  year. 

Such  testimony  i;iven  l)y  this  witness  will  not,  It  is 
apprehended,  he  made  the  l»asis  for  extendin<;- the  time 
for  which  the  huMtiu"'  voya<:e  would  have  continued 
heyond  the  ordinary  limits  tixed  hy  the  <i('neral  tes- 
timony on  that  suliject. 

In  the  .\rf>ument  on  hehalf  t»f  (Jreat  Britain,  treat- 
iu"'  speciiically  this  claim,  the  statement  is  made  that 
the  mate.  Smith,  corrohorated  the  testimoi\y  of  the 
captain  "that  it  .vas  his  intenti(»n  to  try  the  Octoher 


THE    AKIEL. 


455 


Healiiif',"  and  tlic  Kccord  (p.  14H4,  line  "»S)  is  cited  in 
.support  of  tliJit  stiitcincnt. 

Tlu*  ti'stiiiiony  of  tin-  witness,  Sinitli,  tlu-re  ^iivcn,  is: 

Q.  What  uiKlurstaiuliiijr  was  there?  K.,  14S4,  line 

A.  On  several  occasions  \v»'  met  on  board  tbe  scliooner —  •''*• 
that  is,  tiie  liuntcrs  ami  myself  met  the  captain  and  asked 
liini  to  lit  tlie  vessel  well  out,  as  she  was  at  that  time  one  of 
the  larjjest  vessels  out  of  Nictoria  Harbor,  a  stauiu-h  vessel, 
and  we  ha<l  all  nnide  up  our  minds  to  nuike  as  long  a  season 
as  imssible  on  ]irevious  reports. 

Q.  Was  there  any  month  mentioned,  (»r  any  time  mentioned, 
whieli  you  desired  to  remain  in  lleriiifi  Sea? 

A.  Well,  1  believe  that  I  was  one  of  the  parties  that  per- 
suaded the  captain  to  i)rovisioii  the  vessel  uj)  until  October, 
anyway. 

i).  What  do  you  mean  by  "up  until  October?" 
A.  To  allow  us.  if  the  weather  permitted   us,  and  if  the 
rei>(>rts  were  true  with  regard  to  seals  being  found  that  month 
in  the  I'.ering  Sea.  that  we  would  be  able  to  slay. 

Tliis  witness  was  in  tlie  IV'rin;u'  ^^eii  in  ISilU,  on 
tile  h'titlidtiiir,  and  if  lie  desii-ed  to  tr\  his  nnlieard-of 
expeiiinent  of  (  )ctul)(.r  sealiiin'.  it  niiii'lit  reasonal>l\-  l»«; 
expected  to  he  found  that  the  v(»\a;i-e  of  that  vessel 
was  coiitimuMl  until  (b-tol»er,  l»ut  tlu'  witness  testified 
on  cross-examinatiiui: 

if.  What  time  did  you  come  out  of  the  sea  in  18!Ml?  n..  itsii,  Hue 

A.  3lst  of  August.  HI. 

And  he  j;a\»'  no  exphination  as  to  tlie  reason, 
altlionjili  oil  redirect  examination  an  attempt  was 
made  to  ascertain  why  he  left  the  sea  at  that  tinu'. 

From  four  to  live  days  an-  re<piired  to  make  the 
voya<i('  from  the  location  where  the  vessel  chances  to 
l)e  huntin;^'  to  one  of  the  passes;  therefore  this  wit- 
ness himself,  havinj>-  the  opportunity  to  continue  his 
soalinji'  voya<>('  initil  October,  left  the  sealin<>p-ounds 
at  ahout  tlie  2(!tli  of  An;;ust. 

Xo  property  was  taken  from  the  Ariel,  and  the 
(lovernment  of  the  I'liited  St  ites  claims  that  this 
vessel  should  l»e  awarded  the  minimum  of  damajios, 
if  any  sum  whatever,  because  of  the  dishonest  at- 


456  ,    THE   ARIEL. 

tempt  to  luaki'  out  an  aji-jfravatd  flaiin.  Ilowover, 
should  the  Ilijili  ( 'oiniiiissioiuM's  (UH'ide,  iiotwitlistand- 
iniL,''  the  falso  position  taken  by  tlu*  captain  and  part 
owner  of  the  vt^ssel,  to  awaivf  damages  for  tiie  bal- 
ance of  tlie  season,  the  owners  wouUl  be  entithfd  to 
(U'niurraj^e  from  tiie  IKtii  of  Auynst  to  the  20th  or 
'J'lth  of  that  niontli. 


i ; 


ifa 


THE  KATE. 

Claim   No.  2(I. 

Tlif  Kah  t'litcrt'd  Mcriii;-'  Scji  uii  tlic  24tli  of  July,U.,  in??,  line 
1S81I,  cjiiTv  iu^i' fiiilit  cjiiint's  jiinl  liidiiiii  limitiTs      «")ii    '"• 
till'  l.Hlli  fliiv  of  Aiijiiisr  she  wjis  wiinicd  by  tlic  riiitcr! 
States  rcvciiiic  ciittci-   Itii  IkniI   liiis/i  to  li'sivc    Hcriiij' 
Sea,  iiiiflfr  tlirciit  of  seizure.     No  part  of  the  outfit  oi- 
(•ar^i'o  was  seize(l. 

'I'lie  waniiuji'  to  leave  tlie  sea  was  not  olieNcd:  hut l>'••.l:^"^  I'no 
on  the  14th  of  August  the  Miat<'  eiiteiH-d  in  his  Ion; 

AiiKiist  14.— Tliis  day  lii'j;iiis  witli  falin  siikI  lioavy  s«'a  i;.,  i:t7s,  line 
from  westward.     At  Hi  a.  in.  caiHics  nut,  anil  rctnined  at  <>     '•''■ 
1>.  in.;  calm.    The  n'maiiider  <it  tin-  day  wind  westerly  and 
cldiidy;  |)nni|>s  lifjlit. 

Oil  the  l.")th  (»f  .\ii;^ust  this  entry  was  made  in  the 
loo': 

At  11(1011  wind  soiitlierly,  and  liaulins  to  tlie  soutlieast;  k..  ists.  linr 
lijilit  breeze.     At  (I  a.  in.  canoes  our.  and  returned  at  4  \>.  m.    •"• 
Wind  continued  tlie  same.     Move  to  luider  foresail  during 
tlie  iiifilit. 

On  the  Kith  day  the  entry  in  the  lo^  reads. 

At  noon,  southerly  wind  and  I  hick  ton;  i>t  ?<  a.  m.  set  theK-.  laTM,  line 
jib  and  double  reefed  mainsail  and  beat  to  windward.     Con-     '-■ 
tiiiue<l  toK-iy  the  remainiler  of  the  day. 

The  entry  in  the  loj^-  under  date  (d'  Aii^iust  17  con- 
tains this  entry: 

Hlowiiifj  strong'  and  heavy  sea.  and  rain  and  toy,  ]>uini)8K'.,  i:<7!i.  line 
lijtht.  lookout  carefully  attended  to.  •<•<• 

<  )ii  the  iSth  of  Au^iust  the  lo;;'  shows  that  the  vessel 
si<>hted  r^ieinok  Island,  which  would  indicate  that  she 
h'ft  Heriui;-  Sea  through  rniniak  I'a.sson  that  dav. 

n  s ."(8  4."" 


4').S 


THK    KATE. 


w.,  i:wi, 

•JO. 


II. 


K..  i:WJ 
63. 


K.,  1HK<, 
42. 


"""     Tlif  liuuU'is  hixl  iiiiuU'  ii  totiil  ciitch  tif  73(»  i»r  74(> 
si'iils    ill    |{c;-iii;i-   Sni,  \vlii«'li    wt-rc   <l«'liv«'r«'<l    to   tlu' 

OWIUT. 

Kmiii  tlif  1,'Uli  <liiy  ot"  .Viifi'iist,  tin-  diiy  on  wliidi 
tlic  Vf."<sfl  \\!is  wiiriM'fl,  until  tlu-  istli,  slic  luwcn-il 
her  ciiiiiK's  twice,  liiiiitiii^i'  tli»'  full  diiys.  'I'lu-  entries 
in  tile  l<i<>'  tor  the  other  intervening'  ihiys  shuwetl  tliiit 
the  weiither  wnnhl  not  iieiniit  nf  seiilin;''. 
Mil.'  The  testimony  of  Alexniiiler  |{e|i|ieii,  the  iiiiite, 
shows  tliiit  the  Kiiti'  hlintetl  every  <l)iy  hetwceii  the 
ihiv  of  the  wiirniny  ;iiiil  the  iIiin'  of  her  leiiNinu  the 
sen  tlint  iHTiiiitted  of  the  hoiits  beiii;''  lowered. 

<»».  X<»w,  wait  11  ininiitv.  The  fnct  is.  tlmt  iM'twH'ii  tin- 
l')tliiliiy  of  August  anil  tlio  Istli  ilayof  Auf;iist,  iiicliisive,  it 
was  so  stormy  that  you  eouUl  not  h)\ver  a  sealing  liont,  ".vas 
it  not .' 

A.  No,  sir. 

i).  What  do  you  iiiuaii  by  that;  it  was  or  was  not .' 

A.  Yon  I'onltln't  lower;  it  was  stroiijt  and  windy. 

Q.  So  that  it  yon  had  not  tieon  Winned  on  tliii  l''tth,on  tiie 
H!th,  17lh,  and  IStli  yon  conhl  not  have  htwered  yonr  boats 
anyway,  eonhl  yon .' 

A.  No,  sir. 

The  seidiiijj'  season  in 
closed,  and  the  dMina^'e 
very  slioht. 

riu'  witness  Ke|>|ien,who  was  mate  on  the  voyao-e, 
testified: 

liuu     (^>.  Von  left  Heriiig  Sea  that  year  about  the  time  the  im.sty 
weather  .sot  in,  did  yon  not  i 

A.  Yes,  sir. 

Q.  An<l  about  the  time  that  the  westerly  winds  were 
bey;innintj  to  be  the  prevailing  winds — strong  westerly  winds. 
Is  not  that  ao;' 

A.  Ves,  sir;  we  were  fjettiiifj  we.sterly  winds  all  aloiij.?. 
lini'     Q.  And  you  think  that  you  came  out  in  ISSU  when  pietty 
nasty  weather  was  beginning  ? 

A.  Yes;  .some  line  weather,  too,  before  we  went  through 
the  Pass;  and  then  it  started  in  nasty  afterwards.  I-Mne 
weather  the  day  before  the  day  we  went  to  the  Pass. 

i}.  It  was  not  tine  weather  the  day  before  you  went  to  the 
Pass? 


Meriiiii'  Sen  was  prncticnily 
thnt  this  vessel  siistnined  is 


THE    KATE. 


4&9 


A.  Two  (lays  iH'f'oic  tliat. 

(}.  Tin'  l.jtii  wiis  tlu'  last  tiiK'  (lay  you  liadf 

A.  Yes. 

I},  And  yiMi  Iowi'hmI  your  caniM's  (mi  tliat  <lay  .' 

A.  Ves. 

'I'll*'  witness  tcstilicfl  tlmt  lu'  was  in  Hcrinji'  Sen  in 
tlif  year  iSSlSnn  tlit-  I'lith/indn:  and  was  not  warned; 
'•(•aiMc  ont  tile  lotli  lA'  .\ii;;iist.  as  near  as  I  can  re- 
Mienilier:"  tliaf  lie  wiis  nn  tlie  /Uinl:  /htiiitoinl  in  1SS7 
and  left  iJerin^-  Sea  "aliuiit  tlie  ]'):\\  of  Aii"nst.  1 
tliink." 

( 'a|itain  .Muss  was  askeil  renardiiin>  the  time  that  he 
intended  to  stay  in  the  sea: 

i).  Now  tell  MM'.  Captain,  what  were  your  instructions  as 
to  the  time  yon  slioiilil  stay  in  the  sea .' 

A.  .My  instniclioiis  were  to  stay  there  as  hniff  as  the 
wt'ather  would  iii'iniit. 

(  hi  eross-exainiiiation  this  w  itiiess  was  eNainiiiefl  as 
tu  the  time  when  he  had  left  the  sea  in  I'nrmer  \ cars: 

ii.  VVlnit  boat  were  you  on  in  ISSO.' 

A.  On  the  I'ai'oiirili. 

(i>.  What  time  did  you  leave  the  sea.' 

A.  About  the  l!tlh  ot  Aujinst,  I  think. 

<^.  What  boat  were  yon  on  in  1SS7? 

A.  I  was  on  the  l\'<ite. 

i).  What  time  did  y<ai  leave  the  Uerinj;  Sea  .' 

A.  Twentieth  of  Aufjust,  or  a  little  later;  I  (loii't  remem- 
ber as  to  a  ilay  or  so. 

i).  What  bout  were  you  on  in  l.SSs; 

A,  The  Faroiifilr. 

(}.  What  day  in  August  did  you  leave  the  .sea  in  that  year .' 

A.  I  do  not  veineuiiier  what  day  it  wa.s;  it  was  late  in 
August. 

The  testiniuny  of  the  captain  and  the  mate  certainlv 
<lo  not  warrant  the  claim  that  this  vessel  wduld  have 
staid  in  lierin;;'  Sea  until  the  lirst  of  ( ►ctoiier;  Imt  in 
addition  to  the  fact  that  the  mate  tlioii<iht  the  had 
weather  had  set  in,  and  that  it  was  the  usual  time  for 
leavin<:'  the  scii.  acc(rrdinii'  t((  his  experience,  and  the 
usual  time,  accordinii  to  the  experience  t>f  the  cajitaiit. 


K.,  I 

;w. 

I.'..  1 

til. 


u..  i; 

51. 


<K<,  line 


IST,  hup 


'.hi 


400 


THK    KAIK. 


iis  fcsfitu'il  til,  tlic  UrconI  cMiitiiiiis  the  iiositivc  stiifc- 
iiH'iit  III'  tlu'  itwiuT  i>t'  tills  v»'s,H»'l  r«';>iinliiij>'  tin*  <liini- 
titiii  lit'  tlic-  voyn;;')',  limii^lit  out  itu  ilirt-ct  cxiiiiiiiiii- 
tinll. 

|{  i:i7l  line  ^i'  '*'*'  )""  ^''^*'  '''"'  (till' I'liptiiiii)  any  iiiMtnitttioiiH  tm  to 
il.'     '        tli»^  tiiiu'  lie  wiiH  to  stay  in  tlii'  sea  .' 

A.  lie  wan  to  stay  as  loiiK  an  lie  jiosHihly  i-oiilil  cany  ou 
U\n  sealing;. 

if.  No  more  iiistnictioiiM  lieyoiiil  tliat.' 

A.  Nothing  tiiore.  I  coiLsiilereil  that  lie  wan  well  aware  ol' 
tli«  work  lie  liail  to  atteiiil  to. 

(j.  With  regard  to  provisioiiM,  how  loii^  iliil  you  provision 
the  boat  lor;  what  length  of  voyaj;ef 

A.  Altoiit  the  iiiitldle  of  Se|tteiiiliei',  to  reaeli  here  in  \'ie- 
turitt. 

No  citiitioii  (if  tfstiiiioiiy  is  iicfcssitrv  to  prove  that 
tli«'  tiiiM-  oriliiitirily  coilsiihumI  in  iinikiiio'  tli*-  vo\a;>c 
tVoin  itcriiio-  Sea  to  N'ictorin  was  in  tlic  iicioliltorli 1 


of   tit'tcrii   to  s«-V('iit«'»'ii  <]■■ 


ami   that  the  Mvcrat 


tiiiM'  (•oiisuiikmI  l»y  ii  s(  iio'  scjinoiicr  in  stowin;'' 
away  her  small  lioats  aii  in  prciairin;;'  to  Iciivc  the 
Hfriii^i'  Sea  for  her  return  Noyajic  ami  in  niakinji'  the 
|iassa;i('  from  the  jihu-e  in  the  sea  where  she  ehanceil 
f(i  he  sealino-  to  the  Pass,  was  aliont  Hve  davs. 

Aeeordinjily,  on  the  statement  of  the  owner  him- 
self, the  \oyaoe  of  the  h'aff  would  have  ended  the 
2'»th  of  August,  and  she  sealed  eonstanth  until  the 
17th. 

Melyea's  (>har;>es,  >«2.'iO,  (lepeud  upon  the  same  con- 
tino'ent  arriuioenient  as  all  of  these  charoes  in  the  vari- 
ous elaims. 

There  is  no  testimony  cited  from  the  Record  upon 
which   to   hase  the  claim   for  "time  and  exjiense  of 
owner,  :  ^00,"  and  there  is  no  such  testimony. 
K.,  I3!t4,  lini)      The  h'ofr  was  huilt  in  ISd'iand  her  re<iistered  ton- 
naoe  is  .').S.l  1. 

This  vessel  is  entitled  to  recover  from  the(iovern- 
ment  of  the  Tniti-d  States  demurn.oc,  as  in  <"ase  of 
detention,  from  Auyust  IS  until  the  close  of  the  seal- 


43. 


THE    KATE. 


iiiy  Hi'Mhoii;  tliiit  is,  t'lr  II  |HMi(i(|  viniinisly  <  .stiiiintcd  jit 
triiiii  two  to  Hi'vcii  tlm  .1. 

riif  f'lict  tliiit  tli*>  sii|t|»li(.s  iilxiiiril  tlu'  vi-sucl  wen- 
tiikrii  itrt"  lit  tin-  fniiliiii;-  pimt  nf  ('lmrl<'.s  .Spriii;-',  the 
owiH-r,  on  her  rt'tiini  vuynu'c  to  N'ictorin,  slioiild   Itc 

tiik«'ii  int isidrriitioii;'  ns  slioiild  also  the  t'nct  tLiit";: 

Jif    Kyii(|iiot,  1111(1  otluT  |iliH't's  on  the   west  cojist  of    '^ 
Vfinconvcr   Islinid,  sin-  wns  loiidt'd  witli  ii  rarjio  lor 
transport  to  \'i«'toria. 


461 


■>.  .•>!';   If., 
Wl. 


:i: 


THE  PATHFINDER. 

(  'l.AIM    No.  •_'!. 

Tliis  cliiiin  Jirisfs  troiii  the  seizure  of  the  I'dfli/ii/i/rr 
ill  Xeiili  \\;i\\  ii  iiiirlior.  in  wliiit  wiis  iit  tli;it  time 
Wiisiiiiif^toii  Territurv,  m  |iiirt  of  tlie  I'liited  Stiites  of 
Ainerieii.  on  the  -JTth  or  I'^th  of  Mnrch.  1S!)().  Tlie 
seizure  Wiis  iiiiwh'  l)\'  the  (•oiiiiMiiii(iiii;i'  otheer  of  the 
I'liited   Stiites  revenue  cutter   Ciinriii  on  the  ^roiiiid 


\\  illiiini  .Miinsie  iiml  rreilerieK  l  ariie,  jr.,  citizens 
of  (ir«'iit  Ih'itMin.  owned  oiie-iiiilt  of  the  l'iitli/iiiiln\ 
and  Amh'ew  .1.  iieciitel.  ii  citizen  of  the  I'liited  States 
of  America,  owned  one-liaH'. 
''  The  aihnissioii  was  iiwkU'  on  hehalf  of  ( ireat  IJritain 
tliat  tlie  interest  of  Mechtel  ill  tlie  I'lillijirdif  had 
remained  uii(dianjiC(l  from  the  time  of  her  seizure  in 
ISSII,  at  which  time  he  was  a  half  owner  in  the 
venture. 

The   \cssel  was  seiz<'i|    Martdi  '11.  ISSll.  as  shown 

1)\   the  fnidin;;s  of  tact  of  the  Triliiinal  of  Arbitration 

convened   at    Paris,   and   in   a   footnote   to  the   talile 

found  in  Aiine.N  ('  to  the  Trihunal  of  Arltitration  the 

4(« 


i 


J; 


TIIK    I'ATHFINDKK. 


463 


stiifciiii'iit   is  iiiiidc  tliiit  she   Wiis  rclcnscd   two  dnvs 
later. 

AlexiiiKU'i-  l{c|t|i('ii,  the  iiuitf,  i-iillcd  as  a  witness 
on  ix'Iialt'  of  the  clainiints,  was  nnalde  to  lix  witii 
accnracv  the  date  of  the  sel/,in-e,  althonuh  lie  testi- 
(ieil,  "\Ve  started  from  Neaii  Hav  at  (I  o'ehnk  in  the 
iiiornin<iandcanieto  Tort  Towiisend  al»out  |-J  o'chick ''■•.  '*--•  i'"" 
in  tlie  forenoon."  '''■ 

The  teh'j>Tain  sent  l>y  the  coniniandin;'-  olHcer  of 
the  Ciinr'ni  to  the  Secretary  of  the  Ti'easnrv  at 
Washin<iton  phiced  the  date  of  the  seizure  as  March 
■-'!).  On  that  ihiy  he  teh-^raphed  the  Secretar\-  ot' 
the  'IVeasnry,  Washiiiiiton,  from  I'ort  'I'ownsend.  as 
foHows: 

I  foinid  at  Ncah  Hay.  Wasliinjrtoii,  todntj.  British  sciiooiior  l.'..  iski.  iimo 
/  iitlijinilrr.     I-Iscapt'd  tVoiii   stciiiiiiT   Hush  al'tor  scizmi'  in     •'■"'• 
HoiiiiK'Sea  last  year,     lliivo  (lotaiin-d  and  hroufflit  Imt  to 
this  phice  and  traiisftM  red  to  custody  of  ('((Hector  of  customs 
peiuliufj  advice  I'roui  Dcpartuient. 

Anothi'r  teh'<:rani  was  sent  on  the  sanu-  ihiv  to  the 
Secretary  of  the  Treasury  hy  ( '.  M.  Hradsliaw,  col- 
h'ctor  of  customs  iit  Port  Townsend. 

Am  detainiuj;-  I'.ritisii  schooner  I'athlhuhi;  awaitinsj 
instructions.     IMease  advise. 

(leoro'e  \\.  'l'i(du'noi',  Assistant  Secretar\-  of  the 
'I'reasui'y,  replied  to  the  telejiram  (d'  the  collector  (d" 
customs  at  I'ort  Townsend,  under  date  .March •_'!»,  1  S'M), 
as  follows: 

[n  tiu^  year  18S7  the  Department,  in  a  case  (|uitc  similar,  l{.,  i«io,  ii,„. 
hut  in  some  respects  stronner  lor  the  (lovernment.  decided    ■"'!' 
that  tlio  vessel  coidd  not  be  held.     In  view  of  that  precedent, 
without  now    reviewinji  the  principles  u|)on  which   it  \m} 
cceded,  I  direct  the  release  of  the  I'nthtindtr. 

The  schooner  was  accordinj-ly  released,  hut  instead 
ot  procee(lino'  on  her  voya<i-e,  sailed  across  the  Straits 
of  Juan  de  Fuca  to  \'ictoria,  where  she  was  delayed 
a  week  underji'oinji'  repairs. 

The  seiztn-e  was  not  the  cause  (d"  the  /'«//<//«(/</•  pro- •<•  ><-<.  hno 
eeediu"-' to  N'ictoria.      If  the  vessel   had   returned  to    nlIoiL>."''' 


it  •>. 

i; 


A 


464 


THE   PATHFIXOER. 


R..  x-Jl. 


H.,  X2'2.    line 


Xciili  Hiiv  iit'tt-r  liiT  rclciisi'.  slic  woiiM  liiivc  jirnvcd 
rlit'iH'  oil  tlK'  iii;^iit  nt'  Mart'li  ■2ll,  iiiid  the  seizure 
would  liiive  resulted  in  lier  detention  from  tlie  iiiorn- 
in<;-  of  tlie  ■J9tli  of  .Mnn-li  to  tlie  nijilit  of  the  siime 
diix'.  or.  iiecordiiiL;'  to  tlie  tiiiilin^s  of  tlie  I'iiris  'i'ri- 
Ituniil.  ill  lier  detention  for  flinr  il((i).s. 

Ill  tlie  i»l«'iidiu;is  tiled  heforetliis  ilifili  ( 'oiiiinission 
jit  \  ictorifi,  diiiii!i;;es  ju-e  ehiiiiied  to  the  iiinoinit  ot 
>^'J,(MiO:  l»ut  in  the  Ar^iiineiit  the  ehiiiii  is  iiiiide  for 
><3,700.  This  iiichides  an  item  for  diiiiiii;^es  for  "ille- 
^iil  hojirdiiiji-,  search,  and  arrest  of  the  vessel,  >^'J,000.'" 

A  claim  is  also  made  tor  "jiersoiial  and  leji'al  ex- 
pel ises,  !SL'( )().'" 

There  is  no  testimoin  in  the  Record  of  any  ex|»endi- 
tnres  made  l»\  the  owners  on  account  of  the  seizure, 
anil  no  testimom'  is  referred  to  in  the  Ar;ininent  on 
l)elialf  of  ( Jreat  Britain. 

if  the  vessel  is  eiitith'<l  to  any  damai^'es  it  is  for 
demurraji-e  for  a  |ierio(l  of  one  or  three  days. 

Alexamier  Uepiieii,  tlu'  mate,  was  the  only  witness 
callecl  on  behalf  of  the  claimants  to  testify  coiicern- 
iiili'  the  occiu'reiices  at  the  time  of  the  seizure. 

<i>.  Wcri'  you  on  (ici'k  wlieii  tlio  seizure  took  place? 

A.  Ves,  sir. 

().  . I  list  as  briefly  as  you  can  tell  us,  wliat  was  said  aiitl 
(lone  by  the  officers? 

A.  The  otticor  went  to  tlie  cabin  to  examine  the  pai)ers 
and  he  eaine  on  deck  and  the  cai>tain  came  on  deck  and  told 
uie  that  they  had  .seized  ns. 

().  Vour  own  captain  .' 

A.   Ves.  sir. 

(}.   Well,  jjo  on. 

A.  The  otiicer  (roni  the  Coririn  went  on  board  the  cutter 
and  sent  a  crew  of  men  with  a  towline  on  Ixtard.  made  fast 
to  n^i.  and  towed  us  to  I'ort  Townscnd. 

Q.  Was  there  any  conversation  that  y(Ui  heaid  take  place — 
were  here  any  orders  or  instructions  given  that  you  heard 
about  heavinj;'  your  anchor,  or  anythinji'  of  that  kind  ? 

A.  T'he  same  otiicer  canu'  on  board  ajjain  and  told  us  to 
lieave  our  aiu^lior,  and  we  were  bound  for  I'oi  t  Townseiid. 

(i).  Was  there  any  answer? 


is  tor 


THE    PATHFINDER. 

A.  Answer  to  that?  I  went  and  told  tlie  men  to  heave  up 
the  auehur. 

Q-  Ui<l  you  do  that  at  once,  or  was  there  an  answer  before 
you  did  that  ? 

A.  Not  any  tliat  I  know  of. 

(^  You  were  instructed  to  heave  your  aiiciior,  and  you  did  ? 

A.  Yes,  sir. 

(}.  Then  wiiat  did  they  do.' 

A.  Then  they  towed  us  out  of  the  liarbor  and  took  us  to 
Port  Townsend. 

The  (Jovt'niiiK'Ut  of  tlic  Uniti'd  Stiites  itssi-rts  that 
tliis  vessel  was  seized  within  the  jiiris(neri(in  of  the 
United  .St;ites  in  <.-.i(.d  t'iiith;  that  "for  the  i)ur|)ose  of 
makinji'  an  investi<>iition  she  was  towed  to  tiie  nearest 
telegraph  station,  and  there  n-h-ased  as  ((nickly  as 
onh'rs  eonid  he  reeeiveil  from  the  executive  (h'part- '^'/^'i' '' 
lueiit  of  the  <iovernnient,  and  tliat  no  (hnna<>-es  can 
Ije  awanh'd  lier  owners. 

Tlie  vessel,  havin<>l»een  forced  into  Xeah  Ba\-  under 
distress,  had  the  rit-lit  granted  her  hv  the  law  of 
nations  to  depart  without  interference;  l)ut  in  order 
that  the  claimants  mii>'ht  l)e  in  a  position  to  a<lvanc(! 
the  claim  of  privilej^e,  it  was  the  duty  of  the  ollicers 
ot  the  I'lifhliiidn  to  demand  the  privilejic  of  the  com- 
mander of  the  cutter  Co/vr/;/,  av  Ito  maUtdviiowntidiim 
that  the  vessel  had  entered  the  juris(nctional  waters 
of  the  United  Stati-s  in  distress.'  'j'his  [jrivilej-'e  was 
n(tt  claimed,  and  no  such  iniormation  was  i^'iven  to  tlu* 
counnandin^'  oliicer  of  the  Conriii,  as  is  clearly  estab- 
lished l)y  the  testimonv. 

Tlie  owners,  or  their  representative,  not  havin<«' 
asserteil  their  riji'hts  at  the  time  of  the  seizin-e,  and 
the  vessel  haxin-i-  been  seized  hy  the  pi-rsons  repro- 
sentin<4-  the  autliority  of  the  I'lnted  States,  in  ij;no- 
rance  of  the  fact  that'the  vessel  had  entered  Xeahliay 
in  distress,  no  damao-es  can  he  awarded. 
«  s ■")!» 


465 


K..  1650, 

K.'.  1651, 
54. 


H.,  1652, 
26. 

K.,  1652, 
4(1. 


|{..  lir>2, 

6S. 
R.,  1653, 

40. 


THE  HENRIETTA. 

Claim  No.  2li. 

The  J/ciir'u'ttd  I'litorcd  Hcriiiii'  Soii   in  S('i)t('nil)('r, 

]S!l2,  in  violation  of  the  iikkIiik  rirrntli.     On  tlu'  Gtli 

lineof    Scptcniher,    ("njitain    IIooikt,    coinniandin^'    tlu^ 

ij^glhiiti'd   Status  rovcniu'   steamer  Conriii,  seized   lier. 

8e|»teiMl)er  lU,  Coinniandev  Evans,  ('onnnan<lin<i'  the 

United  States  naval  force  in   Herinji'  Sea,  reported  to 

the  Secretary  of   the  Navy   that   the  Jlcinictto  had 

been  seized  aii<l   that  she  would  be  taken  to  Sitka, 

there  to  be  proceeded  ajiainst  on  a   charj.'e   of  vi<»- 

lating-  the  revenue  laws  of  the  I'nited  States;   at  the 

same  time  reportin*;-  that  he  had  made  a  declaration 

«>f   seizure    a<iainst    the   vessel   for   violation   of    the 

iiKxhts  rirendi,  and  in  case  of  failure  to  condemn  the 

slii)»  for  violation  of  the  revenue  laws  "she  woidd  be 

line  turned  over  to  the   British  authorities  at  Victoria  for 

trial  under  the  ihoiIks  riroidi." 
ii"i'      Mr.  Foster,  the  I'liited  States  Secretary  of  State, 
in  a  note  dated  February  10,  lS',13,  advised  Sir  Julian 
Pauncefote  of  the  seizure   <»f  the   Jlcinirftd,  and   in- 
formed him  that  she  had  been  delivere*!  to  the  authori- 
ties of  the  United   States  at   Sitka   on   a   «'liar<re   of 
violating;- the  revenue  laws,  "and  in  case  of  failure  to 
condemn  her  on  a  charge  of  violatinji'  the   revenue 
laws,  she  was  to  be  turned  over  to  the  Mritish  authori- 
ties at  \'ictoria  for  a  violation  of  the  iikkIiis  rininli." 
lino  The  British  and)a.ssador,  in  a  note  bearin<>-  tlate  Feb- 
linoruary  1"),  IHil.'j,  ret|uested  that  the  Ifci/rirftd  be  de- 
liveH'd  to  the  British  authorities  as  provided  in  the 
(."onvention  of  lS!t2. 

466 


THE    HENRIETTA. 


467 


Mr.  Foster  replied,  in  a   note  djited  Kehruarv  21, 1^- 1*553,  line 
1SJ»3,   tliat    lie  had    reeoniinended  to  the  Attorney-    '^" 
General  of  the  United   States  that  the  Hciirirttd  he 
delivered  to  the  proper  British  authorities  for  trial 
under  the  iiiodiis  riniidi. 

Th"  1  )epartnient  <»f  State  advised  Sir  Julian  I'aunce- 1*  - 1''"'*'  '"'o 
fote,  under  date  of  Septeniher  2,  1S1)3,  that  the  lil)el 
against  tin-  Ifi'iirirtta,  charjiinji'  hei-  with  violation  of 
the  revenue  laws  of  \\w  United  States,  had  l»een  dis- 
missed, addinji":  ''/.v  if  fl,r  ilrsirr  af  i/<nir  (lorciiniinit 
tlidt  xhc  slitill  iriiKiiii  ill  rliarf/r  of  lirr  idjifiiiii,  i,r  fliat 
flic   I'llitcil  Sfdfrs  sIkiII  sniil  lirr  to    I'irfniiii /" 

The   British    and)assador   replietl   to    this   note  as ''•' ^•'•"'"' •'"•> 
f.dh.ws:  ^• 

Newport,  Sfptnnher  :30,  isn:,'. 
Sir:  [  did  not  fail  to  transmit  to  the  Harl  of  Kosebery 
the  iiKiuiry  wliicli  you  addressed  to  me  by  teloKrnm  on  the 
2d  instant,  as  to  whether  it  is  tlie  desire  of  my  (lovernment 
that  the  Ifniriittu  sliouhl  remain  in  cliarp'  of  her  captain  or 
that  the  United  States  should  send  her  to  V'ictoria.  1  Imve 
now  the  iioiu)r  to  inform  you  that  in  rejily  to  the  above 
hniuiry.  Lord  iiosebery  has  instructed  nu'  to  request  that 
tlie  llcnikttd  may  be  sent  to  N'ictoria  uiuler  the  exact  terms 
of  the  HKidus  Vivendi,  or  he  left  in  vUdrife  of  her  captdiii  df  the 
option  of  jjour  Government. 

On  the  23<l  of  October  instructions  were  sent   hy 
tlie    DepartnuMit   of    Justice    <d'    the    United    Stat('s  w.,  l6.-y.i,  line 
directing-'   the    United   States    marshal   at   Sitka    "to    "' 
notify  the   captain  of  the  llnnieltd   that  the  vessel 
WUH  released  and  subject  to   his  alisohite  disposal;"  •^■'.  !*'■"''•' •''"' 
and  thereafter  the  I)e]»artmi'nt  of  State  addressed  the 
foUowiu};'  note  t()  the  British  ambassador: 

I  have  the  honor  to  transmit  herewith  for  the  information 
of  Her  Majesty's  (lOvernment,  in  connection  witli  previous 
correspondence,  a  cojty  of  a  letter  from  the  lamorable  the 
Attorney  (leneral  of  the  18th  instant,  showing  that  tlie 
schooner  Henricttd,  with  her  boats,  tackle,  apparel,  furniture, 
and  cargfo,  was,  on  Xoreinbcr  2:i,  isiKl,  tnnieil  over  to  the  cap- 
tain of  the  rengel,  irho  gare  hin  receipt  therefor. 


ifiif  I 


p 


468 


U.,  1{>(54, 
13. 


H.,  16()3, 
8. 


K.,  16ti3, 

48. 


R.,  1663, 
56. 


K..  1G77, 


THE    HKNKIETTA. 

Hue     (\t)»tiiiii    I'iiickiiey,  cxiiHiiiUMl    on    beliiilf    of    tlii' 
cliiimjiiits,  tcstifitMl: 

(J.  \Vheii  was  sbe  attiially  delivered  ti»  you? 
A.  1  tliink  it  wa.s  the  li.'id'of  November,  lS!t3. 

'I'lic  (M»v('niiiR'iit  of  tlu'  I'liitcd  States  iidinits  its 
liability  tor  tlic  ilctciitioii  of  tlic  Jlci/riittd  from  the  (itli 
(lay  of  Se|)t('iiil»cr,  IS'.fJ,  until  the  'Jiid  day  of  Xo- 
vi'iiilicr,  1S!);{. 
line  Captaiii  riiu'kiicy,  callcil  oii  helialf  of  tlie  claiiii- 
aiits,  said: 

().  Ho  you  r«'incinbei'  wliat  lime  you  arrived  at  Sitlia? 
A.  I  tliiiilv  it  was  tlie  L'Otli  oC  September. 
i}.  Did  you  remain  witb  tlic  scliooner? 
A.  Weil,  1  stopjted  on  her  a  day,  and  tlieu  1  went  ashore. 
(}.  As  far  as  you  were  concerned,  you  were  not  interfered 
with  in  that  respect  ? 
A.  No,  sir. 

(^.  How  long  did  you  remain  in  Sitkaf 
A.  I  think  that  1  remained  there  two  days. 
if.  And  then  what  hajjpenedf 
A.  Then  1  went  to  ^'i«'toria. 

'I'Ik'  statfiiu'Mt  is  made  in  tiic  Arj^tiincnt  on  iK'lialf 
of  Ctrcat  Mritain  tliat  wlien  tlic  master  left  Sitka  the 
'"'"crew  were  in  jail.     The  captaiii  testified: 

(i>.  Was  it  in  the  Jury  room? 

A.  1  do  not  know.     It  was  not  in  the  Jury  room.     I  think 
it  was  ill  the  a..ceroom  where  the  keeper  stopjied. 
liuc     I},  Was  it  the  tirst  time  you  saw  them  there? 

A.  Yes,  sir;  I  think  they  were  jiut  in  that  day  to  prevent 
them  from  j;oinjj  away  on  the  steamer. 

'i'"'      Cicser  Dorinji',  one  of  the   crew  of  the  Iliiniitta, 
tcstiticil  on  direct  exaniinatiini: 

(}.  After  yon  arrived  at  Sitka  were  you  detained  there? 

A.  We  were. 

Q.  J  low  many  of  you! 

A.  Six  of  us. 

Q.    Wfff  yoii  put  ill  the  ,sherij)"s  ii(fivi .' 

■\.    YiH,  i^ir. 

Q.  For  what  length  of  time? 

A.  For  about  three  hours,  1  should  sav. 

Q.  What  ftu'lf 


THE   HENRIKTTA. 

issiiye  iu  tlie  CoiiuUlnm. 


46<J 


A,  We  had  arraiifjed  for  our 
When  she  was  ready  to  },'o  the  wheriff  came  on  board  anil 
took  W9  in  there  and  kejtt  us  there. 

i).  What  did  lie  tell  you? 

A.  He  told  ns  that  he  would  keep  us  there  until  the  boat 
went  away. 

The  master  oftlic  vessel  left  for  Victuriii  two  (IjivsK',""'';*''",*''' 
after  liis  arrival  at  Sitka,  and  thinks  that  it  cost  hiiii    n'.,  'fiKul 

VwwM  'A,  13, 


al)oiit  >>r»(>  to  <>-o  (lowi 
tl 


Al. 


•out  a  dollar  or  two,  1 


in 


k,  would  cover  my  expenses  at  Sitka  before  leav- 


for  \ 


ictoria. 


lie  remained  in  \ictoria  until  .Iidv,  1S9;},  when  1 


returned  to  Sitka,  remaininji'  there  lintil  the  del 
of  the  \-essel  on  the  'I'M  dav  of  November. 


le 
iverv 


Tl 


lei 


e  IS  no  testimony  in  the  lu'cord  that  Captain 
Pinckney  was  employe*!  l)y  the  owners  of  the  vessel, 
I  there  is  the  positive  testimony  that  he  was  not 

s  in 
les.     There 


an< 


l)aid  for  services  durinj:'  the  time  that  the  v«'ssel  wa 


the  custody  of  the  United  States  authorit 
is  no  testimony  that  he  was  not  employed  for  other 
purposes  at  \'ictoria  iu  the  interim,  l)ut  he  asks  the 
G(»vernmeut  of  the  I'nited  States  to  pay  S6()0  for  his 
hnird  at  Victoria,  when  he  was  not  eni;a<,ied  iu  con- 
nection with  the  seizure  of  th(!  Jlei/ricfta  and  niifiht 
have  been  euijdoyed  (dsewhere. 

Q.  1  )id  you  pay  tor  your  boara  iu  Victoria  ?  Did  you  incur 
any  expense  in  Victoria  in  the  ineantiuief 

A.  I  think  it  cost  nie  about  ••<(1(K)  Croni  the  time  I  got  down 
until  the  tiuu'  I  arrived  up  here  again  ? 

(.).  How  would  the  Idoo  be  made  up? 

A.  Well,  hoanl  <ind  Imlghui. 

(f.  Includinj;  your  passage  money? 

A.  ^'o,  sir;  outside  of  the  ])as.sage  money. 

The  United  States  denies  its  lial)ility  for  the  sup- 
port and  maintenance  o  "  the  captain  of  the  Jfrnrictfa 
Avhile  he  was  at  Victor:. i. 

Captain  Pintduiey  testified  that  the  cost  of  returnin<«' •^v,""'|?i' ' 
to  Sitka  from  N'ictoria  was  S;")!),  and  that  he  incin-red 
Sl48   for  personal  expenses  at   Sitka  before  leavin<>- 
with  till'  Ilcnrkttu  for  N'ictoria 


-.,  5S. 


; '  t'  'i 

'  in 


470 


THK    IIKNRIETTA. 


H.,  U>til 

10. 


R.,  1667, 

as. 


K.,  1670, 

6;j. 


line      'IVstit'vin;^'  n'liUive  fo  the  »'oii<Ution  ot'  the  Ifrm-irtfa 
when  he  took  ••hnrj;t'  of  her: 

t).  In  what  coiiditioii  was  the  vessel  when  you  took  eharfje 
of  lier? 

A.  W  ell,  she  was  looking  i)retty  well  Itleaehed.  Her  rig- 
ging hiid  heen  lying  on  her.  and  the  rain  and  Iroat  put  it  in 
had  eondition. 

().  Did  yon  have  her  repaired  before  sailing.' 

A.  No,  sir;  but  I  hatl  to  get  a  new  foresail  for  her  and  a 
lot  of  rnnni:ig  gear, 
liiii-     ().  In  what  eondition  was  the  vessel  when  yon  got  her 
delivered  back  to  you? 

A.  Well,  she  was  a  little  wormed. 

().  To  what  extent.' 

A.  Well,  1  can  iuirdly  tell  to  what  extent.  Just  below  the 
watermark  there  were  a  good  numy  worm  holes  in  her  where 
the  boat  had  ehafed  the  paint  otf. 

<t>.   Had  she  been  taken  care  of  in  the  meanwhile.' 

.V.   Xntliiiiii  moir  tlidii  the  xliip  hcciwr  on  liiKinl. 

().  Mad  she  l)een  copper  painted? 

A.  No,  sii';  ami  her  centerboard  was  badly  damaged. 

().   How  was  it  damaged' 

.V.  Well,  there  was  .some  of  the  iron  strajtping  very  bad. 
1  found  when  I  took  charge  of  her  that  the  chain  that  hauled 
the  eenterboard  up  was  bioken. 

().  Was  it  broken  or  dan. aged  at  the  time  of  the  seizure? 

A.  No.  sir. 

().  And  the  gear  was  out  of  order? 

A.  The  running  gear  was  (piite  rotten. 

i).  In  what  eondition  were  the  sails? 

A.  The  i)rineipal  sails  were  all  right,  but  there  was  the 
main  to|)mast  staysail  which  had  been  left  down  in  the  hold, 
and  was  all  mildewed  and  rotten. 

line      On  cvoss-exaniinatioii  the  witness  testified: 

(}.  The  Hi'iiricltii  had  been  lying  there  in  the  water  at 
anchor  ? 

A.  Yes,  sir. 

(j.  And  as  she  lay  there,  she  was  not  beached  at  all? 

A.  No,  sir;  when  I  tot>k  charge  of  her  I  put  her  on  the 
beach  to  clean  her  bottom. 

().  In  Sitka  ? 

A.  Yes,  sir. 

(i).  And  y(.ii  found  that  she  was  pretty  badly  worm-eaten  f 

A.  Well,  yes,  sir. 

<i>.  Had  you  looked  at  her  bottom  that  spring? 

A.  No,  sir;  not  at  her  bottom. 


THE    HENRIETTA. 

Q.  I  mean  the  spiiiig  of  lSi>2;  had  her  buttoiii  been  exam- 
ined f 

A.  \(i,  sir;  I  did  not  look  at  lier  bottom,  but  1  had  her 
beached  in  Tonid  Uay,  un<l  I  h)oked  at  iier  bottom  there. 

Q.  In  the  Kunnuer  or  tall  of  18!tL'? 

A.  Summer. 

i).  Did  you  observe  any  worm  holes  in  her  tiien  .' 

A.  No,  sir. 

i).  Then  it  is  true  that  in  these  waters  there  is  tlauger  from 
the  worm  ? 

A.  Ves.  sir. 

Q.  It  is  very  well  recognized  as  a  very  serious  menace  to 
ships,  is  it  not? 

A.  Ves.  sir;  tiu'  I'acilic  Ocean  is  pretty  bad  for  wcnins. 

(^  Not  any  more  in  Ueriny  Sea  than  it  is  about  here,  is  it? 

A.  Not  as  1  am  aware  of. 

if.  Now.  t!ai)tain,  you  have  spoken  about  the  injury  to  the 
centerboard  and  themaiii  topmast  staysail  asmlldewed!  Now, 
ill  what  other  respect  than  y<m  have  related  was  the  Jlrnii- 
ittii  injured? 

A.  Well,  of  ctmrse,  the  vessel  lyinjj  up  there  in  the  rain 
and  wet  and  frost  and  snow.  j;enerally  the  ironwork  {jets 
bad.  and  the  decks  get  bleached,  and  rusts  the  ironwork. 

(i>.  Well,  what  was  the  sail  that  was  lost,  mildewed,  or 
injured,  worth .' 

A.  Well,  1  do  not  know  exactly  the  cost  when  it  was  new, 
I  am  sure. 

(^  Was  it  new  the  year  when  you  sailed  out  of  Victoria? 

A.  No,  sir;  1  think  not.     It  had  Iteen  used  a  little,  1  think. 

().  About  what  was  it  worth  ? 

A.  Well,  1  could  not  tell.  I  do  not  know  how  many  yards 
there  were  in  it. 

(i>.  And  the  centerboard ;  how  much  would  it  have  taken  to 
put  that  ill  repair? 

A.  Well,  1  should  think  it  would  have  taken  i)robably 
about, SI'). 

i).  Now,  you  had  been  out  for  the  entire  season  of  1S!L', 
sailiii}--  in  :\Iarch,  1  think,  did  you  not,  for  the  coast  catch? 

A.  Yes,  sir. 

Q.  .\nd  yon  were  seized  about  the  4th  of  Sei»tember,  and 
you  were  on  your  way  home;  you  had  had  about  yonr  full 
season's  voyage? 

A.  Yes.  sir;  I  was  working  my  way  home. 

(),  Now,  the  llvurhttti  had  the  wear  and  tear  of  that  voy- 
age at  the  time  of  the  seizure  ? 

A.  Yes,  sii'. 

Q.  What  do  you  think  it  w(mld  have  taken  at  the  time 
that  you  got  possession  ot  the  vessel  again  to  put  her  in  as 


471 


't!> 


%^ 


472 


THK    HKNRIKTTA. 


good  rt'piiir  as  slie  was  wlioii  you  lliiisbed  tlu^  voyiige  in  Hep- 
ti'iiibpr,  IS'.H'.' 

A.  That  is,  tlie  luilH 

ti>.  Yes;  tlifsliip.    'riiecoiiteilioanl  flx«Ml  and  tluMlaiiiaKe 
to  tlie  sail  tliat  was  niildowod;  put  lior  in  tiie  same  condi 
tion  as  slu'  was  when  you  started  for  lionie  on  tlie  Otli  of 
.Se|)tenil>er,  ISiti.'? 

A.  Of  eonrse  tiu'ic  was  a  good  deal  of  wear  and  tear  to 
her  sails  (Mtining  down. 

().  Yes,  bnt  what  was  the  aetnal  wear  and  tear  to  her 

sails  dnrinfj  the  voyajieof  IS'Jli — tlie  ordinary  voyage  *     Wliiil 

iroiild  it  liiirr  tiil,rii  to  harr  put  liir  in  iix  ijiuul  <i  rotnlitioii  an 

slic  icds  ill  J>^!):.'  irhcn  you  irirc  ahiinl  to  leaif  the  shi)).' 

1.'.   KiTL'.  line      'I-   I  xlioiilil  sill/  alioiil  sli>;  tliiit  in,  to  put  npiiirs  on  liir 

1.  iwirpt  tlir  ironiis. 

',>.  Iloir  itinrli,  ill  roiniil  Jii/iircs,  do  i/oii  think  tliv  injury  to 
tlir  iTsnrI  wiix,  or  irliiit  iroulil  it  liiirerost  to  liKi'v  put  the  ri'sucl 
in  (IK  f/ooil  repair  iiltoijethvr,  vaptiiiut 

,1.   /  think  prolidlily  (il)ont  s'jDn;  that  is,  the  hull,  unless 
the  planks  had  been  worn  so  bad  that  they  had  to  be  taken 
ont;  then  it  would  eost  nu)re. 
R..  11172,  line     (^».  \Vheu  you  examined  the  skins,  to  what  extent  were 
•'-•  they  in.jureii.'of  the  .UM*  or  Km  that  were  in  there? 

.\.  Well,  1  do  not  know,  but  in  my  mind  1  think  it  would 
l)e  about  !?•>.  or  something  like  that. 

(}.  Three  dollars  for  what  ? 

A.  Threi'  dollars  i)er  skin. 

lie  siiNs  tliiit  tlu'  420  st'iil  skins  seized  were  (l('liv«'re(l 

is- 


K'.,  llilil,  lilU' 

.'lit. 
H.,  lliii."!,  lin 


10. 


.hack  t<»  liiiii,  liut  that  tliey  wen-  <l;iiiiiiji('(l.      lie  <l 
]iuse(l  (if  10")  (if  tlu'  skins  at  Sitkii.      Kij;lit  ji'iiiis  mikI 


a  ville,  taken  fnuii  the  vessel  l)v  tlu*  authtu'iti 


es.  were 


H.,  KitiC),  lin.'returnei 


tol 


Mill  more  or 


h'ssd; 


iniM"('(i 


Thelinliai 


IS 


It). 


Ex.    lOs,    (; 


Kei) 


ittl 


leir  canoes,  a 


nd  the  hoats  were  returned  to  tlie 


vessel  "verv  much  l»roken  and  the  hottonis  all  entei 
out  with  worms." 


The  Ar 


till  11 


lent  on  iK'lialtdf'  (Jreat  IJritain  chiiriie 


ii., 


Loss  as  shown  l»y   K.xhihit  S,  paji'e   1()8,  ^1113. CO." 
Kx'ii'ii'-  Kxaininiii;^'  this  exiiiltit,  it   will   appear  that    almost 


Claii 


it8,  J).  '.'81.' 


e\cr\' 


i-tich 


wi 


th  tl 


le    exceittion  o 


f   th 


le  i)rovisions, 


u'e  arti(des  that  were  undoiihtedlv   returned   to   th 


vesst 


■iiicli   as   coiiinasse 


saws, 


l)its,  1 


knives,  water 


casks,  etc.      In  that  exhihit  the  idiarjic  is  made  also 


nil',    IIKNKIKTTA. 


473 


for   "tlirci'   Ixiiits,   t\V(»  111'    tluMii    new,    N'J.'JO."     TIic 
sclii'ilulc  ill  tlif  Arjiiiiiu'iit  r('|K'fits  tlic  iffiii  t'liliir^cd, 
"TliriU'    lioiits.    destroyed    l»y    woniis,    nt    n,s")    eadi,  1>-,  HKlit,  linr 
>*L*r>r»."     'I'lie  /Iciiriilld  fiirricfl  Itiit  three  l>ofits.  ' 

Tlie  (leiiiaiids  of  tliis  (diiiiiiiiiit  iire  so  urosslv  e\or- 
hitiiiit, soiihsoliitelv  witlicMit  fomidiitioii  in  tlie  (Jecord, 
iilid  so  iiiiiisiiiil  tiiiit  ii  detiiiled  discussion  of  eaeli 
item  is  considered  iinneeessjirv.  Tlie  lli^li  ( 'onniiis- 
sioiiers,  upon  inspectinji'  tlie  schedule,  will  find  thiit 
the  ilhistriition  of  the  doiiiile  cluirHe  for  the  lioats 
priicticidly  represents  the  method  in  which  the  entire 
schedule  is  ninde  up.  'I'wo  items  for  leynl  expenses, 
iis  follows,  iire  contiiiiied  in  the  schedule:  "  Le;i!il 
expenses  at  Sitka,  >>irj. ")(),"  "  |{el\ ca's  l)ill,/r  proceed- 
ini;s  at  Sitka,  >^lli{."  'I'liose  items  are  siip])orted  liv 
the  liecord,  and  inasmuch  as  the  inoiiev  was  evpeiided 
in  behalf  of  the  owner  in  protectinji'  his  schooner 
a}>ainst  the  (diarjic  of  violatin<ji'  the  revenue  laws  of 
the  I'nited  States,  from  which  she  was  siiijseiiiieiitlv 
released,  the  (lovernmeiit  of  the  riiiteil  States  desires 
to  re]»ay  the  (daimant  the  amount.  The  further  item, 
however,  "|{(dyea's  charii-e,  >^()()(»,"  is  liased  upon  the 
followin<"'  testimonv: 

().  Had  yoii  any  other  iigreeiiient  with  Mr.  Sjiriiisas  toaiiy  K..  1738,  line 
otlier  cliaiges  ?  5L'. 

A.  Ves;  in  tlie  fall  of  IS!),!.  At  the  tiin«  it  was  not  known 
whether  the  vessel  would  be  back  or  what  would  be  the  re- 
sult of  the  ease.  There  was  noiur  talk  <;/'  npihiiliiKj  from  thv 
iltviniiiii  of  the  voiirt  tit  SilLd,  and  a  liinii>  sum  of  .•jfiOd  was 
af^reert  to  as  the  eost  with  respet^t  to  tiie  claim.  This  was  to 
inei)are  the  claim  and  get  it  in  and  h)ok  after  it  until  it  was 
settled. 

Inasmuch  as  no  decr«'e  was  ever  entered,  and  coii- 
.se(|iiently  no  appeal  ever  taken  from  Sitka,  and  as 
there  is  no  testimony  that  ^Ir.  Hcdyea  had  any  con- 
nection whatever  with  ol)tainin;.;'  the  vessid  for  the 
owiuM' — hut  on  the  contrary  the  diplomatic  corre- 
sjiondence  already  <'ited  shows  that  the  ves,s(d  was 
B  s 00 


I 


474 


IIIE    HKNHIKTTA. 


H.,  1735, 
51. 


I 

1  . 


U.,  IWio, 
21. 


ri'lciiscd  hy  order  of  tlic  hcnartiiiciit  ot"  Stuff  of  tin- 
I'liitcd  States — tlu-  cliiiiii  tor  tliis  it«'iii,  wliicli  wiis 
Imscd  ii|)oii  services  to  l»e  perforined  in  <'oiineetioii 
with  the  Hj»|ieal,  when  ii  chiini  for  apiK'al  even  was 
never  <iK'<l,  is  without  foundation  in  tact. 

The  item  "Kx|HMises  at  Victoria,  >>(I(H»,"  has  heen 
nu'ntion«-d. 

The  chiinis  "l^oss  of  tinu',  waiting;'  (hdiverv  of  ves- 
s(d  at  NlOO  a  month.  !s7(k»;  hardships  sutlered  In- 
master,  >i."(0(»,"  nnd  ahnost  every  item  thereafter  until 
the  end  of  the  schechde  are  (h-mands  absolutely  witli- 
out  foundation  in  the  testimony.  They  are,  more- 
over, ])er.sonal  claims  of  the  persons  name<l,  and  are 
tlierefore  not  within  the  jurisdiction  of  this  lli<>h 
Commission. 

Concernin<>'  the  item  "  I'ersonal  expenses  andtrouhle 
of  Charles  Sprhijc,  85(10,"  Sprin}>-  testitied: 

line  t^>.  The  tiine  tliat  you  spent  here  tliat  yoix  refer  to  was  spout 
in  i)rei)ariiitf  a  claim  against  the  United  States  for  the  seizure 
and  detention  of  the  Henrietta  t 

A.  It  was  more  partienhuly  to  collect  evidence,  I  think  it 
was. 

Q.  For  a  claim  ajcain.st  the  United  States? 

A.  Yes. 

Q.  Had  it  anything  to  do  with  the  defense  of  the  snit  at 
Sitka  ♦ 

A.  No. 

Q.  What  time  you  spent  here  was  in  collecting  evidence 
with  Mr.  Hclyea  to  jircsent  the  claim  to  your  tJovernmentto 
be  recovered  against  the  United  States  for  seizure? 

A.  Yes;  I  think  that  would  be  about  right. 

'llie  item  "  lOA  skins  sold  at  Sitka,  ^If)  a,  skin,"  does 
not  take  into  consideration  the  fact  that  the  captain 
liiii'ti-tities  that  he  obtained  "^h'lh.Xh  forthe.se  skins  at 
Silka;  nor  the  fact  that  in  tlu;  Ar<;ument,  j)a<fe  ><'),  line 
50,  the  statement  is  ma<le  "in  1H'J2  skins  were  worth 
514." 

The  claim  of  >^2,(MI()  tor  de|M'eciation  in  the  value 
of  the  vessel  rests  njton  no  testimony  whatever  save 
that  of  the  captain,  where  he  says  that  it  wcmld  have 


i  5 

1 


TIIK    HKNHIKTTA. 


475 


hccii 


<'(i8t  s-J(Mi  to  iv\n\\r  her.     Spriiij-',  tlic  owiicr  of  seven-  "•■  '"■'"'  '"'" 
eiylitlis  <if  the  vessel,  testitied: 

if.  Von  siiw  the  lltitrietta  at'torwiudH,  CM  yon  not? 
A.  No,  I  ilon't  think  J  ever  seen  her  her.*  since  she  went 
away. 

Fell,  file  ttwiier  of  (»ne-ei<>litlHit' the  vessel,  lestilied  K.'^'l.lines 
that  when  she  iirrived  in  N'ictoria  lie  wiis  absent,  ami  '"'''^' 
that  he  did  not  see  her  until  the  I'l'd  or  "Jfitli  of  .March. 
He  knew  nothinjj'  of  what  care  had  been  jfiveii  the 
vessel  in  the  meantime,  and  inasniiich  as  the  owners 
were  (|narrelinji-  with  the  ca|»tnin,  as  is  shown  l»v  the 
testimonv,  some  presumption  miylit  arise  rei>'ardin}i' 
thi.s. 

Q,  Did  you  ever  own  any  otiiei'  vessel?  K.,  l7J:i,  Inie 

A.  Yes.  lit. 

Q.  Whiit  others? 

A.  Only  two  small  vessels — sloops. 
<^  What  do  you  mean  by  a  small  ves.sel  ? 
A,  A  ve.s.sel  of  eight  or  nine  tons. 
<^  Below  the  register  here,  I  suppose? 
A.  Yes,  below  the  register. 

*i.  Did  you  ever  own  a  registered  vessel  before,  or  own  an 
interest  in  one? 
A.  No. 

He  testilied   that  the  vessel  was  not    hauled  up  on 
the  beach  to  have  her  examined,  and   he  t'vidently  l{..  nii',  liue 
knew  notliinjiJilxiut  the  condition  of  the  vessel  excent  ,.''■?',,.  ,. 

ii     i     1  I      I  •  !•.  1  1     1         1  .1  '  ,  Iv..  1741,  line 

that  she  was  leakni;-'  a   little   and  that  her  sails  and    r.o. 

ropes   were  worn.     lit*  did   not  know    whether  the 

loaka;>'e  was  about  the  centerboard  or  not.     if  it  was 

it  could  have  been  repaired  at  a  nominal  expense. 

This  witness  testifies  re<>ardiii<>a  sale  which  is  cited  "••1714,  line 
in  the  Ar}>ument  on  behalf  of  (Jreat  Mritain.     A  read-    ^"' 
ill"'  of   his  testimony  will  show  what  weiyht  should 
be  attached  to  that  offer. 

The  sheriff  subsetiueiitly  seized  the  Hciif'nitu  under  !<•,  1745,  line 
an  execution  directed  af>ainst  Mr.  Sprino-  for  a  debt    *'*' 
not  contracted  in  connet^tion  with  the  Hn/rieftn,  and 
^Ir.   Foil  testified  that   tliev  did  not    have  time  to 


,i!' 


47(i 


K.,  1747,  liuo 
22. 


THE   HENRIETTA. 

* 

t'luleuvor  to  sell  the  vessel  before  the  sheriff  luid  her. 
There  is  no  testiinouy  that  the  vessel  was  free  of  liens 
when  the  sheriff  sold  her,  and  the  sum  realized  at  that 
sale,  as  said  by  the  High  C'oniniissiitner  on  the  part 
of  tlie  United  States,  <i-oes  a  verj-  little  way  in  estab- 
lishing- the  value  of  the  ship. 

The  (iovernnieut  of  the  United  States  is  liable  for 
the  fair  charter  value  of  the  Jlenrlefta  from  the  (Jth  of 
Sei)tend)er,  1892,  until  the  23d  of  November,  1893, 
together  with  such  losses  ms  the  owner  actiialli/  sus- 
tained. The  boats  were  undoubtedly  damaged,  legal 
expenses  were  incurred  at  Sitka,  and  the  value  of  the 
skins  depreciated. 


a 


If 


THE   OSCAR   AND  HATTIE. 
("LAIM    No.  23. 

Tlie  Osnir  uiid  J/affic  \\t\s  si'izcd  by  a  rt'\emie  cut- 
ter ill  the  service  of  the  I'liited  States  in  tlie  liarhdr^^Vis"^'  "°^ 
of  Attn  Island  on  the  30tli  (hiy  of  Auj-iist,  1S92,  for  a 
violation  of  the  convention  signed  on  the  ISth  (hiy  of 
April,  lH\)-2,  between  the  United  States  and  (ireat 
Britain  for  the  renewal  of  the  iihkIhs  rivcmJi  of  1891. 

Attn    Island  is  the  most  westerly  of  the  Aleutian 
Islands,  and  the  harbor  in  which  the  (hrai-  and  llaitiv 
was  seized  is  in  Merin<>-  Seii.     The  seizure  was  i»i>de'^|.,o  H„e57' 
by  the  l^iited  States  revenue  cuttei-  Muhinni. 

Article  3  of  the  wadus  rirnidi  of  18!I2  provided: 

Every  vessel  or  person  oflfeiuliiig  iif-iiiust  this  proliibitiou 
in  the  said  waters  of  Bering  Sea,  outside  of  the  ordinary 
territorial  limits  of  tlie  United  States,  may  be  seized  and 
detiiined  by  the  naval  or  other  dniy  commissioned  ollicers  of 
either  of  the  high  contracting  parties,  bnt  they  shall  be 
handed  over  as  soon  as  practi<'able  to  the  authorities  of  the 
nation  to  which  they  resjiectively  belong,  who  shall  alone 
have  Jurisdiction  to  try  tlie  offense  and  impose  the  penalties 
for  the  same.  The  iritnesscs  mul  proofn  luccsnarn  to  eKtnblinli 
the  op'ensc  i^liaU  uiso  he  sent  with  them. 

This  article  is  the  same  as  Article  i{  of  the  iiiodifs 
tnrriidi  of  18!)1. 


i'arliau'.ent  enacted  in  1S!»1  the  "Seal-Hshcrv  Act, '^^^i'"''* 


ISill." 

That  act  provided  that  iler  Majesty,  the  (^)ueen 
niifi'ht,  by  i>rder  in  council,  jn-ohibit  the  catchinji'  of 
weals  l)y  Hritish  ships  in  Herinj>'  Sea,  or  such  part 
thereof  as  was  dctiiied  l)y  the  said  order  durinj.;'  the 
period  limited  by  the  order:   and  "if  a  British  ship  is 

477 


90, 
G.  H.  CI., 
2;t;  Ex- 
hilMts  263. 


m 


478 


THK    OSCAR    AND    HATTIE. 


t'nuiid  witliiii  Hcriiiji-  Sen,  liariiif/  on  hixinl  thvnof  Jisli- 
iiif/  or  ulidiitiiifi  iiiii)l(')iif»ts  or  nciil  shins  or  hodics  of  sads, 
if  sIkiII  Hi'  on  t/ir  oiriifr  or  iiiasfcr  of  siicli  sJii/t  to  prove 
flidt  flic  sliij)  ivds  not  Kscil  or  rniji/oi/fd  in  contrdrrntion 
of  this  (let." 

R.^1534.  line       \^^  u\(\vv  in  (■(mucil,  (lilted  "at  tlie  Court  of  Wiiid- 
R..  1M4, lino sor,  Htli  diiv  of  ^liiv,  lSi>2,"  wiis  luiidc,  and  instvuc- 
'^^^  tioiis  were  issued  to  liritisli  cruisers  necessary  to  en- 

force the  provisions  of  the  inoihis  rinnili  of  18!l'i. 
Ksbibit    8!t,      T!ie  rresi(U'nt  of  tile  I'nited  States,  actiny  thnmjili 
■si;      Ex-^'"^'  Secretary  of  the  Navy,  issued  to  the  coniniauding 
hibits  L't>2.  officer  of  the  naval  force  in   lierin^-  "^cj!    in;  n-.u'tions 
for  the  eiitVtrceu lent  of  the  terms  of  Mn-  m...  ,       'f  1892. 
ParajiTajih  '1  of  the  instructions  w- a: 

Any  vessel  fouiid  to  be  or  to  have  been  eiiij/Dyed  in  sealing 
within  the  prohibited  waters  of  Heriiifj  Sea,  whether  with  or 
withont  \i9,\w'n\ii,iin(t  iinji vessel foiinil  therein,  nhetlier  named 
or  not,  lidvinfi  on  Itoard  implements/or  taliina  seals  or  seal  skins 
or  bodies  of  seals,  irill  he  seized. 

Exhibits.      At  the  time  of  the  seizure  of  the  Oscnr  and  Hottiit, 
L".'7,lineii.  >^)n.  ],,„}  ,„j  l„(.|,.,l  shootinji'  iuipleiiients  and  seal  skins, 
and  she  was  in  iierin^'  Sea. 

<).  When  you  were  seized  in  Gotzleb  Harbor  yon  had  all 
your  sealin};e()uii)uient  on  board,  iiadn't  you — your  guns  and 
all  tiie  necessary  apiiliaiiees  for  sealing — on  boaril  of  the 
vessel ; 

A.  <  )ii  board  the  schooner  ? 

(i).  On  board  the  schooner. 

A.  They  were  there,  sure. 

(}.  And  you  had  certain  seal  skins  on  board  ? 

A.  Y»'s,  sir;  but  they  were  not  caught  in  the  Beriiit;'  -.mi. 

l*ara;iTa])h  ■'{  of  the  modus  rirnidi  of  18!t2,  ^  hi-ii 
is  (|Uoted  aliove,  provides  that  every  vessel  'irt'eniiii;^- 
aji'aiiist  the  |>roliil)ition  of  sealin<i'  hi  the  waters  of  I^m'- 
iiiji'  Sea,  should  be  seized  and  detained  liy  the  oHicer 
of  either  (Joverniiieiit.  The  construction  placed  iipou 
article  3  hy  Itotli  (Jovernnients  has  been  shown  hy 
the  extracts  from  the  Seal-fisher\-  Act  of  18!)1  and  tlio 
instructions  issued  in  accordance  with  the  orders  of 
the  I'resiileiit  of  the  I'liited  States.     That  construc- 


3 


THE   OSCAR   AND    HATTIE. 


479 


tion  was  that  if  a  Hritisli  ship  should  bo  t'oiuid  within 
Boriiiji'  .Sea  liaviiijf  on  board  thereof  tisliino-  or  sliootinj^- 
iniph'nients,  or  seal  skins,  or  l)(»dies  of  seals,  it  should 
lie  on  tile  owner  or  master  of  such  ship  t(»  prove  that 
the  ship  was  not  used  or  eni])loye(l  in  contravention 
of  the  Convention;  and  any  vessel  found  havinji'  on 
hoard  iniidenients  for  takiu<>-  seal  or  seal  skins,  or 
bodies  of  seals,  was  to  be  seized. 

The  captain  of  the  I'nited   States  revenue   cutter 
Moliicaii,  findinj"'   the    (hntr  (ind   lldttic   within    the 
waters  from  which  she  was  excluded  by  the  Conven- 
tion, havino-  on  board  implements  for  takino-  seals, 
which  constituted  reasonable  cause  fo/  seizure  as  pro- 
vided in  the  instru('ti(»ns  issued  by  the  Secretarv  of 
the   Navy,  and  l)y  the  Seal-fishery  Act  of  1S!I1,  andJ^jil'i'its, 
havinji'  on  board  also  bodies  of  seals,  which  placed    "'''' 
on  the  owner  of  the  ship  the  onus  of  provin<>'  that  the 
shii)  was  not  used  in  contravention  (»f  the  moi/iis,  as 
])rovided  in  the  Seal-fishery  Act  of  1S!»1,  seized  the 
schooner  on  the  .'50th  of  Aiiuust,  and  on  the  1st  day '',^.,'j '','.'*'*• 
of  Septend)er  took  the  vessel  in  tow  to  Unahiska,    r«,l'0;"i:x^ 
reachinji'  there  on  the  r)tli  of  Sejitember.  uile*!';""' 

Cttmmaiuh'r  Kvans,  of  the    Yodioiru,  was   in  tlieKx  hii.'its, 
harixtr  of  Unalaska.  21'-',  iiiur)4. 

i).  Yes,  aiul  wlnittlid  the  Yorktoim  commander— wliat  did 
lie  do  ? 

A.  He  told  iiie  to  stop  over  until  the  Melponiftw  came  aloiif; 
and  he  would  turn  me  over  to  the  Melpomviu: 

Q.  Tliat  is  I  ler  Majesty's  sliipf 

A.  Yes,  sir;  tiiat  is  J I er  Majesty's  ship. 

Q.    Well,  ill  about  ten  dmp  ifou  wrir  onleiril  In/  <V/;>^()h  k  x  h  ibi  ts 
Parr,  of  the  Mclpoiiiiiii,  to  pioreiil  to  Vivtoriii  t  I'l'it.lineu! 

A.   iV,v,  sir. 

ii.  After  leaving-  ( "aptain  Parr  on  the  Melpomene,  vou  pro- 1:  x  li  i  b  i  t  s , 
oeeded  to  Victoria  under  his  orders,  did  you  not?     '  i-'i',), limra. 

A.  Y'es,  sir. 

Q.  And   reported   there  to  the  adnnral  at    Esquimault 
Harbor? 

A.  I  reported  to  the  eolleetor  of  ctistonm. 
Q.  And  i/oiir  ship  iras  then  taken  in  ehureiet 
A.    Yes,  sir. 


480 


THE    OSCAR    AND    HATTIE. 


i 
I 

1 

I 

J'.  Il 

11'''' 


Q.  At  auy  rate,  yttii  left  lier  witli  the  eolleetor  of  customs  J 
A.  I  left  iier  with  the  collector  of  customs,  with  a  watch- 
man oil  board  of  her. 

The  ciiptiiin  (if  tlu'  ^loliicdH,  in  accordance  with 
paniiiTapli  l^  of  tlic  iiiuihis  ricfiidi  of  1S!>2,  seized  the 
Oxrai-  (iiiif  Ildttif,  and,  as  sliown  hy  tlie  testimony, 
took  tlie  vessel  to  Unahiska,  and  thereafter  (J(ini- 
nianiU'r  Kvans,  of  tlie  l'o/7i/o/(V/, delivered  her  to  Cap- 
tain I'arr,  of  Her  ^lajesty's  navy,  eoniniandinji'  the 
^Lflpimiciir,  and  rejavscntinji'  in  Herin^'  Sea  "  the 
authorities  of  the  nation  to  which  she  l)eli»n<ied,  wlio 
alone  had  jtnMsdit'tion  to  try  the  oti'ense  and  impose 
the  jieiialties  for  the  same." 

The  authorities  of  (Ireat  Britain  delivere<l  the  ves- 
sel to  the  nearest  British  court  to  l)e  tried.     That  court 
was  the  Kxclie(|U('r  Court  of  Canada,  British  Colum- 
bia admiralty  district,  and  thereafter  the  Oscar  anil 
Jfdtfic  was  iv<iularly  tried  and  condemned  and  for- 
feited, 
'l;  ^'.':  ?•'"•      'I'lie  iud"iiient  of  Sir  ^Matthew  Baillie  Bejihie,  of  the 
241.         '  Kxche(|Uer  Court  of  Canada,  is  printed  in  full.     The 
jud^inent  found  not  only  that  there  was  reasonable 
cause  for  the  seizure  made  by   the   cajitain  of   tlie 
Cnited  States  revenne-cntter  Moliictm,  but  found  the 
Oscar  aial  Ilafti'  (/iiilf//  tA'  acts  in  contravention  of  the 
iiioihis  rirciali  of  1S!)"J. 
Exhibits,      An  ap))eal  was  taken  to  the  Sujtrenie  Court  of  Can- 
Kxh  il)it8,ada,  and  thereafter  the  case  came  on  to  be  heard  in 
i.'48,iiuoio.  j],.,^  court,  and  the  jud<iiiient  of  the  htwer  court  was 
■set  aside  and  reversed. 
Exhibits.      Jn  the  oiiinion  of  the  Supreme  Court  of  Canada, 

2tS    lino  'I 

'  ■  reversinji'  the  lower  court,  it  was  stated  that  snthcieiit 
pr'naa  facie  jiroofof  j:uilt  of  tlu^  Oscar  ami  Hattic  was 
inidoubtedly  aHbrded  b\  t]ie  fact  that  llie  ship  was 
found  within  the  Itoundaries  of  prohibited  waters, 
with  slutoting  implements  and  seal  skins  on  board,  and 
that  the  amis  was  cast  upon  the  owners  to  remove  the 
presumption,  but  that  tlu'  evidence  <>iven  in  the  court 


Ex 


THE   OSCAK   AND   HATTIE. 

Ih'Iow  had  ('stiil)lisluMl  tliiit  tlK'\('ssi'l  nniiniitU'd  no 
a(-t  ill  vi(»ljitioii(»ttlKM'(iiiviMitioii(>nS!l2(»r  in  violation 
of  Her  A[ajc'st\'.s  order  in  council  pursuant  to  the 
Herin^-  Sea  fishery  act  of  1891. 

The  (hifir  lunl  lldflic  had  I  )een  sold  and  the  owners 
claim  to  have  suffered  a  loss  as  the  result  of  the 
schooner's  sale  for  less  than  her  real  value.  The  pro- 
ceeds of  the  sale,  tojicther  with  costs,  were  decreed 
to  the  owners. 

The  Tinted  States  contend  that  the  caiitain  <»f  the 
rev«'nue  cutter  Maliinni  had  reasoiiahle  cause  for  seiz- 
in<i'  tile  (hntr  mid  /liilfic.  The  construction  placed 
upon  the  iiHiiliis  rini/di  ,>{'  lS!l-_>  |»v  hoth  (Joverniiients, 
as  contained  in  the  Fislierv  act' of  18;>1,  and  in  the 
instructions  of  the  Governi'iieiit  of  the  I'nited  States 
to  her  cntters  in  l?eriii«i'  Sea,  was  a  reasoiiaiile  and, 
moreover,  the  controlliiiji'  construction. 

The  captain  of  the  Moliiniii  found  the  vessel  within 
the  jtrohihited  waters.  iiavin<i'  seal  skins  alioard  and 
I'shootin--'  implenu-nts."  dedareil  to  l>e,  from  as  aiithoiv 
itative  sources  as  the  I'arliameiit  of  (Jreat  Hritain  and 
the  Kxecutive  Department  of  the  ({overimieiit  of  the 
I  nited  States,  reasonable  jiround  for  seizure,  and 
thereupon,  in  the  performance  of  his  dut\-,  seized  the 
vessel  and  turned  her  over  to  the  "anthoVities  of  tiie 
nation  who  alone  had  jurisdiction  to  trv  the  orfeiise 
and  impose  the  penalties  f<ir  the  samtv" 

The  (Jovernmeiit  of  (ireat  liritain  had,  l>v  I'arlia- 
mentarx  act,  declared  what  conditions  would  constitute 
reasonalde  ••rounds  for  seizure,  and  one  of  her  citi- 
zens can  not  recover  damages  from  the  Tiiited  States 
because  the  olHcer  of  one  of  their  cutters,  lindin<i'  such 
evicleiice  constituting'  reasonaiile  cause  for  seizure, 
lierformed  his  dutv. 

The  cruisers  of  each  nation   in   lieriiiu'  Sea,  under 
the  terms  of  the  modus  r/^r/^^//,  represented  the  sover- 
eign power,  not  only  of  the  country  whose  fia^-  thev 
flew,  but  also  of  the  other  nation  "party  to  the  Coii- 
B  s 01 


481 


.;  i| 


H:  I 


liHi! 


J  I 


482  THE   OSCAR    AND    HATl'IE. 

volition,  tor  each  luid  siutiiority  to  seize  ships  of  liotli 
nntioiis.  Tlu'  cutter  oi'  tlie  United  States  noted  ixpoii 
the  ;iTouiids  dechired  to  he  reasonable  by  Great  Hrit- 
iiin,  and  a  citizen  owinji-  allof^ianoo  to  Her  ^^ajosty's 
( J(»vernnient  can  not  reo(»ver  <hnnajiOs  from  tlie  United 
States. 

Tlio  final  clause  of  article  3  of  the  viodiis  rircmli 
provides: 

The  witnesses  and  proofs  necessary  to  establish  the  ofl'    se 
shall  also  be  sent  with  them. 

Captain  Parr,  represontiiiji-  in  the  waters  of  the 
liorinji'  Sea  the  sovoroifiu  jiowor  ttf  (iroat  iiritain,  was 
in  possession  of  all  the  proofs  and  in  coniniunication 
witii  all  the  witnesses  who  were  assembled  in  the 
harbor  at  Unalaska,  and  had  he  lot  decided  to  order 
the  Oscar  (tiid  Hoffir  to  Victoria,  the  vessel  would 
have  been  released.  The  cruiser  of  the  United  States 
had  no  further  control  or  power  over  the  vessel  after 
her  surrender  to  the  authorities  of  the  nation  "havin<>' 
jurisdiction  to  try  the  oti'ense  and  impose  the  jienal- 
ties."  and  without  the  decision  of  the  commander  of 
Jler  Majesty's  fleet  in  Ucrin^i'  Sea,  tiie  (Kscar  itint 
Ildlfic  wimhi  not  have  bei-n  coiidcnuKMl  and  forfeited. 
The  commandinii'  oiHcer  of  the  Mi//i<iiiiritf  haxinj^' 
ordered  the  schooner  to  \  ictoria  for  trial,  the  owners, 
who  are  citizens  of  (ireat  iiritain,  can  not  recchcr 
damaji'es  from  the  United  States  arising:'  by  rea.><on  oi' 
his  act. 

The  courts  of  (Ireat  Britain  found  that  there  ex- 
ist«Ml  ridsiiiiiilili'  ciiiisr  for  the  seizure  and  the  lower 
court  found  that  there  I'xisted  (uhiiitiitc  ciuise  for  her 
condenuialion  and  forfeiture.  The  higher  court  re- 
versed the  findinji-  of  the  trial  court  only  upon  the 
(|Uostion  of  the  existence  of  (nhijiKitr  cause  for  con- 
demnation. 

UcdsdiKihlf  cause  for  the  seizure  beiiiji'  estal»lislied, 
the  United  States  '>.re  not  liable  for  the   loss   to  the 


THE   08CAK   AND    HATTIE. 

daiiiiauts.  Tliis  i«  the  law  as  unifonnlv  hold,  and 
althoujih  it  may  work  hardship  in  indivicUial  cases, 
the  decisions  of  conrts  have  established  it  as  the  rule 
of  law  most  universally  just. 

The  decision  of  international  tribunals  and  of  the 
courts  of  l)oth  countries  wherein  this  rule  of  law  has 
been  declared,  have  been  cited  and  connnented  upon 
in  another  i)art  of  this  argument. 


483 


1: 


'■I' 

I' 


'f 

1  ■  ' 

',  . 

1     1 

i 
•if 

.  i 

B.,1509., 
40. 


U.,  1510, 
32. 


the  winifred. 

Claim  No.  24. 

line  'riie  Mivt/ml  wjis  seizi'd  on  tlio  2()tli  of  July,  IHil'J, 
in  Hcriiifi'  Scji,  tor  a  viobition  ot"  tlie  Hindus  rtrviidl  of 
18!»-->. 

The  coniniMiuU'r  of  the  United  States  revenue-cut- 
ter L'iclianl  Jt'nsli  upon  that  day  niacU'  this  entry  in 
the  h»ji': 

At  8.15  stoi>])C(l  and  boardeil  sclieoiier  U'ih //Vcrf,  of  Vic- 
toria, (i.  M,  O.  IJaiKsen  iiiast«'r.  Found  her  with  tour  dead 
luiskiinied  fur  seals  on  deck,  six  others  .salted,  and  one 
taken  later  from  the  Wi)iiJ'rc<l\s  boats,  all  of  which  tur  seals 
the  captain  admitted  had  been  taken  in  ISerin}-'  Sea.  The 
evidence  of  violation  of  the  conxeiition  between  the  United 
States  and  (Ireaf  liritain  beinfj  complete,  seized  the  vessel 
and  jtlaced  a  jyrizc  crew  of  four  men,  under  cliarge  of  Lieu- 
tenant Dod^e.  on  board,  and  bcfjan  towing'  her  to  rnalaska 
at  11. IT)  i>.  m. 

Pursuant  to  the  ( "onvention  l»etween  the  I'liite*! 
States  of  America  and  (Jreat  Hritain  for  the  renewal 
of  the  iikiiIks  rirriidi  of  iS'.ll  for  flu'  year  1S92,  the 
W'niifnd  was  towed  to  I  iialaska  and  "handed  over 
as  soon  as  practicable  to  the  authorities  of  the  nation 
towiiich  she  Itelonii'ed."  for  the  purpose  < if  ha vinj^'  the 
crew  tried  and  the  xcsscl  condemned. 
'""^^  I'nder  <late  of  ,lulv  27,  ( 'aptain  ( 'oulson,  conunand- 
in;i-  the  liirluinl  lliisli,  maile  this  entry  in  his  loj>-: 

At  10  a.  m.  United  States  steamer  Yorhiinrn  airived  in  port. 
Commandinfi  o(1ic»'r  paid  otlicial  call  on  Commander  I'^vans. 
Later  t'onunander  Evans  and  Captain  I'arr,  L'o.val  Navy, 
(!ame  on  board  and  conferred  with  (;onnnandin<>'  ollicer  as  to 
disposition  of  seized  schooner  Wiiii/rcd. 


^fl 


r^ 


THE    WINIFRED. 


486 


k 

•    ■ 

1'liis  ciitrv  shows  tliat  prior  to  tlie-JItlidiiy  ot'.Tuly 
C'aptniii  (!oiilsoii  lijul  arrived  at  I'luilaska  with  the 
Win  if  ret  ill  tow. 

Cfiptaiu  Coiilsou  testified  that  "Ciiptaiii  Parr,ot'  the  H.-J^"'  ""« 
Royal    Navy,  known   as  the  senior   officer  of    Her 
Majesty's  tieet  in  tlie  |{erinj>Sea  waters  in  eoiniectiou 
with  the  iiioihis  riiritili,  and  Capt.  Hohley  1).  Evans, 


ao. 


and  tl 


le  couunaiKlniii'o 


ffi- 


le  senior  ottieer  o 


.f  tl 


le 


of  the  I'nited  States  Nav 

cer  of  the    Yorhtmni,  also   tl 

American  fleet,  and  Captain  C'oulson,  of  the  reveinie 

cutter  //».s//,"  were  to;>vther  in  conference  oiithe-i7th 

of  duly. 

As  the  result  of  that  contereiice  Captain  Coulson 
advised  the  Secretary  of  the  Treasurv  at  Washin;^- 
ton  as  follows: 

On  July  L'7  CoimnaiKler  Kvaiis,  liiitcd  States  Navy,  and  l(.,  ir.i5. 
Vuitt.  A.  II.  Vhaxf  I'ari;  h'oi/al  Xiiri/,  commdnilhuj  llcr  Mtijcsti/' 


I  I'd  I  I'ltrcv  in  lln 


>i{f  Sfii,  met  by  appointment  on  board  the 


li'iish,  and  after  a  full  discussion  of  the  matt«T  it  mm  )i<inril 
on  tlir  ixirt  i>f  Captnin  I'arr  that  liis  (iorcrnnimt  ironld  ir«ire 
tin;  ilfiht  of  cnstodi/  of  fin-  sri:f<l  ri'xsfl  until  she  had  been 
tried  i)y  the  United  States  conrts  lor  violation  of  the  I'nited 
States  revenue  laws,  i)rovi(led  that  in  ease  of  failure  to  con- 
vict her  on  those  charges  the  vessel,  her  carjio.  outlits,  etc.. 
ami  master  ami  crew,  were  to  be  turned  over  to  the  repre- 
sentatives of  Her  Majesty  the  (,)necn  of  iMif-land,  at  \'ic- 
toria.  r.ritish  ("oluinbni,  for  trial  on  the  charfie  of  violation  of 
tlu^  terms  of  the  existinsi:  nnnlns  rinndi. 

.Vctiiiff  under  instracticms  received  from  Commander 
Kvans,  I'liited  States  Navy,  I  iiave  therefore  made  firmal 
xfizurr  of  the  Winifivd.  and  anrstcd  her  master,  (i.  M.  ( >. 
Hansen,  and  crew,  for  violation  of  the  I'nited  8«ites  revenue 
laws,  as  al)ove  cited,  and  as  soini  as  the  lU'cc^  ;ary  papers 
can  be  i)rocared,  she  will  l»e  delivered  into  the  custody  of 
lacutenant-Commander  Tanner,  of  the  I'liited  States  Navy, 
commaudiiiK  T.  S.  steamer  Alixitross,  for  delivery  into  the 
hands  of  the  United  Slates  district  attorney  at  Sitka. 

This  letter  discloses  that  suhseipient  to  the  time  of 
the  seizure  of  the  Winifred  in  Heriii<i'  Sea.  on  the  2(>tli 
of  .luly,  at  which  time  she  was  seized,  as  stated  in  the 
loji'  of  the  limli,  for  violation  of  the  Convention  l)e- 
tweeii  the  United   States  and  (Jreat   Britain,  Captain 


48tJ 


THE    WINIFRED. 


(.'(lulsuii  liad  rcfcivi'il  iiit'oniiiitioii  tlmt  tlic  W'niifiid 
had  vioIiitiMl  till'  revoiUK'  laws  of  the  riiitcd  States 
(if  Aiiifrica. 

K,,  i.-iiH,  line  ']^i,is  iiitonnatioii  Captain  ('(Hilsoii  did  not  have  at 
the  time  ot"  the  seiziu't'  of  the  Wiiiifri'd  in  Merin^iSea, 

E.,  151«,  lint)  111'  l)ein<i'  afterward  informed  of  the  facts  l)y  Captain 
Hooper,  who  was  in  connnand  of  the  I'nited  States 

K.,  VAT),  line  revenue  entter  Conriii,  in  a  letter  which  was  the  l)asis 
of  the  conference  lu'tween  Captain  I'arr,  of  Her  .Maj- 
esty's Na\  y,  and  Connnander  Kvans,  of  the  United 
States  Navy,  at  which  "it  was  ai^reed  on  the  part 
of  ('aptain  I'ai'r  that  his  (iovernnunit  would  waive 
the  rij^ht  'if  custody  of  the  seized  vessel  until  she 
hail  been  t.ied  hy  the  Cnited  States  coiu'ts  for  viola- 
tion ot    I'nitei'i  States  revemie  laws." 

This  aii'reenient  iietween  Captain  Parr,  who  repre- 
sented in  person  the  sovereijiiity  of  (Jreat  Mritain, 
and  Connnander  Kvans,  of  the  I'nited  States  Navy, 
was  made  in  the  port  of  I'nalaska,  in  the  Territorv 
of  .Maska,  and  within  the  jurisdiction  of  the  United 
States  of  America. 

'I'lie  W'niificil  was  accordin^i'ly  released  from  the 
charjies  preferred  for  a  violation  of  the  Convention 
hetween  (ireat  Uritain  and  the  L'nited  States,  by  the 
authorities  of  (Jreat   Britain,  and  formally  re-seized 

u.,  i.-)H2,  iine^\if|,j,,   j^i,^,  territory  and   jurisdiction  of  the   Tnited 
States,  on  a  charjic  of  violatinji'  their  revenue  laws. 
On  the  27th  of  duly  Captain  Coulson  entered  in 
his  loji': 

'*••  l''^^' ''""  '^.'*  t'ircctioii  of  I'onuniiiuh'r  Kvans,  the  vcs.sel  was  formally 
ileelared  seized  for  violation  of  the  revenue  laws. 

Exhibit  111.      Thereafter  the   ir/z/Z/zyv/ was  taken  to  Sitka  hv  the 

*2i''Exhii"- ''''''''''^■''■''>  ^^I'l'i"'*  ^1'*')  \^'\t\\  her  boats,  tackle,  ai)parel, 

itN.  p.  327.  furniture,  and  carji'o,  was  lilieled  for  a   violation  of 

the  revenue  laws  of  the  United  States. 

'"oyi/''*"'  !'■      Her  owner,  Charles  Spiinj;-,  filed  an  answer  to  the 

merits,  not  raising'  the  (juestion  of  jurisdiction. 

A  stipulation  wa.s  signed  agreeing  that  testimony 


THE   WINIFREIX 


4«1 


be  taki'ii  in  tlic  city  of  Vict( 

cliiimaiit  to  tin;  vessel  pursuant   to  wliicli   the  testi- 

nioiiyofCliarles  Spriiij-',  the  owner  of  the  vessel,  was 


»ria  on  hehalf  of  the '•'^''''''''<'   !'• 

.itii. 

K.\liil)itN,    p. 


le  ease  eanie  on 


tohe^'^l;:;'"'-  1' 


taken  in  his  own  hehalf 

On  the  1st  of  March,  1S94,  tl 
heard  in  open  conrt,  on  the  pleadin^rs  and  proofs,  and'^xii 
a   «lecree  was  entered  "that  said  schooner  Wiiiifivd,    " 
her  hoats,  tackle,  apparel,  furniture,  and  car;>(i,   and 
dl  proi)erty  found  upon  or  appertaininji'  to  said  vessel 


liitH, 


X\\. 


he.  and  the  same  are  herehv,  condenuied  as  forfeited 
to  the  United  .States." 

On  the  LMith  of  Aia-il,  1S!I4,  tl 


e  court  decreet 


1  that 


the  Wniifml,  her  hoats,  tackle,  apparel,  fiu'niture,  and 


KxIiiliitN,    p, 


carji'o  should  l)e  sold  after  th 


;qi. 


e  usual  notice 


In   accordance    with   the  decree   of  the   court  th 


Wiiii/nd  was  sold  and  1 


K'canie   a   total  h 


th 


ow 


ner.     Charles  Sprinji;',    the  owner,    never    iilcd    a 
claim  for  appeal  or  perfected  an  appeal  after  havino^ 
sui)mitted  to  the  jurisdiction  of  tl 
defended  the 


le  court  anc 


navm 


case  on  its  merits. 


The  (u»vernmeut  of  the  Tnited   States  el; 


it  is  not  lialtle  for  the  loss  to  tl 


lims  that 


K  X  h  i  1. 
p.  111. 


le  I 


frr,/.     The  V 
>f  tl 


•wner  of  the   IT 


es.sel  was  seized  in  HeriiiL;'  Seji  f 


atioii  < 


le  iiioihis  nni/d 


with  the  terms  of  tl 


anil  o 


Ifer 


or  a  vio- 
ed.  ill  acconhiiice 


le  wik/iis,  to  the  authorities  of  tl 


nation  liavino-  jurisdiction  to  try  the  olVeiise  and 
the  penalties. 


le 
imiio.se 


Captain  I'arr,  of  Iler  Majesty's  Nav\-.  represeiitiii<i' 
the  authority  of  Her  Majesty  in  the  waters  of  Herino- 
Sea,  and  the  soverei<>n  power  of  ( Jreat  Britain,  ordei-ed 
that  the  Wiiiifml  should  he  released  from  trial  for  a 


ern- 


violat'on  of  the  Convention  between  tlietwo(iov 
ineiits,  and  aj^reed  that  she  should  lie  re-seized  1>\-  th 
Ciiited  States  and  proceeded  af>-ainst  for  a  violation 
of  its  revenue  laws. 


tl 


In  the  Ar<>uinent  tiled  on  behalf  of  >  1.  cut  Hrit; 


le  assertion: 


tin  isAi'K.  ou  be- 
half ot  (J. 
H.,  ]..  177, 


Under  said  moilm  it  was  iucninbent  on  tlie  United  States    '""^  ^'' 


«i2 


4S8 


THE    WlMKHKl). 


Iff:'!: 


to  tbrtliwitli  ddivfi'  tlie  vcshcI  t«»  tliv  Mriti.sli  imtlionc'es,  and 
CiiiimmiKU'i'  I'lirr  liad  no  authority  wliatever  t(»  };ive  the 
allcfjed  conacnt.  and  tliercliy  waive  any  delivfiy  of  the 
vt'ssfl  to  tlic  Jiritisli  autinaitics. 

Tlic  ( iiivoriiniciit  of"  the  riiitcd  States  coiitciuls 
tliat  the  ilclivcry  <d' tli<'  W'niifnil  to  ( '(iiiiiiiimdcr  I'arr 
v.iis  a  delivery  "to  tin-  aiitlitii'ities  dt"  tlie  iintiuii  alone 
liaviiiji'  jurisdiction,"  ami  that  ('oiiiniaiider  I'arr,  rej)- 
resentiii<;'  as  lie  did  the  sovereifiii  power  of  (treat 
Ihitaiii,  |iresiiiii|iti\('ly  had  authority  to  consent  to 
a  waiver  of  the  ri^^htsof  (Ireat  Hritain,  ami  that  his 
consent  is  Itindinj^-  \\\h\\\  and  estops  that  nation  from 
makiii;^'  a  claim  a^^ainst  the  t'nited  States, 
luitisji  \rv:.,  'I'll,.  Ar;:nment  on  behalf  of  (Jreat  Ihitain  relatinif 
to  the  clann  ot  the  II  iiiijriil  contams  a  u-tter  trom 
the  Secretary  of  State  for  the  I'liitetl  States  under 
date  of  ()ctol)er  ."U.  1S!)4,  liy  which  it  appears  that 
the  hepartment  of  State  had  contused  the  case  of  the 
Wiii'ifiiil  with  the  claim  of  the  lliinhlti'.  The  letter 
is  used  for  the  pni'pose  ot  showin  a  admission  on 
the  jiart  of  the  I'liited  States. 

The  letter  of  the  Acting'  Seer,  of  the  Treas- 

lU'y,  written  nnder  date  of  Novend)t'r  13,  1S<J5,  snl>- 
setpient  to  the  h-tter  of  Mr.  (iresham  and  pi'ior  to  the 
date  of  the  treaty  nnder  which  this  lli!.;h  Connnissioii 
convenes,  states  the  position  of  the  I'nited  States 
with  ri'ference  to  the  claim  of  the   WinU'rcd. 

K.,  18U0.  lino  The  Honorable  the  HiSCUKTAUY  of  Stati;: 

SiK:  Hel'erriny  to  my  tek'fjrani  of  the  Htli  instant,  lluive 
tlie  honor  to  state  that  the  ISritish  schooner  Winifred  was 
seized  by  steamer  li'iisli  -Inly  -0,  ISid',  for  violation  of  the 
proi'l.unation  of  the  President  of  the  I'nited  .States  and  the 
JJritish  lleriny  8ea  act  of  I'arlianient  of  lf<!)l,  and  the  order 
in  council  of  l.S'.d,  and  the  order  in  council  of  Ma>  9,  lH\))i. 
Tlie  seizure  was  made  about  l'>  miles  from  Aimak  Island. 
After  bi'infj  towetl  to  Unalaska,  inforiinition  was  (urnished 
by  Capt.  (J.  1j,  Hooper,  commanding;  the  revenue  steamer 
Vonciii,  to  theeflcct  tliat  the  Wini/ntl  was  liable  to  seizure 
and  her  master  and  crew  to  arrest  for  violation  of  the  I'uited 
States  revenue  laws,  i)revious  to  entering  the  liering  Sea. 


4 


TIIIC    WINIKKEI). 


4S9 


IlMiii  ('(iiisiiltiitioii  lu'twccii  Coimiiiiiulcr  Kviiiis,  l.  S  N 
aiHl  ruptaiii  I'air.  of  IIim  .Mii,j..st,v'«  Niivv.tlif  lutter  wiiivtMi 
Ills  (.(.vcMiiiieiifs  light  of  custody  until  slit-  (Miiiid  he  tried 
lor  vioiiitioii  of  till'  I'liiti'd  States  n-vemu'  laws. 

IJy  direction  of  Coinnninder  ICvaiis,  the  Wiiiifinl  wiis 
titrmally  seized  fur  violiitinii  of  the  I'nited  States  leveniie 
lawsiind  taken  to  Sitka  hy  the /W//«/»v<x,v.  She  was  siihsf. 
•  Iiieiilly  condeiiiiietl  i>y  the  Inited  States  court  at  Sitka  and 
sold,  and  the  money  has  lieeii  turned  into  the  Tieasin  v. 
IJesiieetfiilly.  yours. 

\V.   K.  ("tUTLS,  Scvirliirii. 

'I'lic  I'liitt'd  StJit«'s  (Iciiy  till  liiiliilitv  tor  (laiiuij^vs 
sustailicd  liy  the  owiicr'of  the  Wiiiifird,  l.iit  7li(. 
sclicdiilc  jittiiclicd  tu  the  <-laiiM  in  tlic  Arjiuinciit  cdii- 
tJiiiis  sonic  items,  rcffrcnct'  to  wliicli  will  lie  iiiadf. 

Tlic  sciil  skins  cliiiiocil  for  were  all  taken  in  viulii- 
tinn  "f  the  law  ut'  tlie  nation  tu  wliicli  the  owner  of 
the  nV//;/)y7/  owed  alleLiifinee,  and  to  award  any  sum 
lor  a  eatch  of'sejils  niaiii contrary  to  the  laws  oV  hotli 
(•(.untries  would  he  a-aiiist  iiuhlic  iioliev.  This  rule 
of  law  seems  to  hiix'e  heeii  [lartially  reunrded,  for  no 
claim  for  u  ]tros|iective  ciitch  which  would  Imve  Iteen 
taken  in  violation  of  the  ( 'oii\ cntion  of  1S!»2  hetweeii 
the  I'uited  States  an<l  (Jicjit  liritain  is  made. 

The   value   of  this  vessel   of  U5   tons    is  phiced   at 
^I'.ddO.     She  was  liuilt   in  ISdil,  repaired  somewhat 
ill  INIH',  and  the  valiu- of  ^770  |ilj„.,.,|  ,,|„„,  l,,.,.  |,y  Kxi.ii.it.  :t;«i, 
the  appraisers  was  ii  lihei'al  one.  linrtiii. 

Tliei'e  is  no  testimony  in  the  Hecord  upon  which  to 
base  the  item  "Time  and  expenses  of  owner,  n-_)(I(»." 
and  there  is  no  evidence  that  the  crew  suffered  liard- 
shiitsorweredetaiu«-d.  TheiJaptain  was  detained  at 
Sitka  liecause  he  wiis  arrested  for  a  violiition  of  the 
laws  of  the  United  States. 

'I'hese  claims   are,  moreover,  personal  claims,  not 
included  in  the  ( 'oiiveiition. 
II  s (J2 


V  I'  II  t 

K  e  1) . 


ron- 
i  II  n 


U.,  l,-.37, 


liii. 


the  wanoerbr. 

Claim  Xo.  •_';"». 

This  cliiiiii  is  siilniiitU'<l  iiuilcr  tlie  terms  ot'  the  tit'tli 
])iir;iiiTa|»li  ot"  the  convciitioii  cri'Mtini;-  tliis  Ili;^li  ( 'oin- 
iiiissioii. 

TIic  (lOVcriiiiuMit  of  the  Tiiiti'il  Stntcs,  iiniiiiittiMl  l»y 
!i  sense  of  justice  iind  l)y  ii  desire  thiit  all  liahility 
should  he  detinitely  and  t'idl\-  settled  and  determined, 
and  all  |Mtssil)le  claims  and  causes  ot"  c()ni]»laint  or 
vron^doin^i'  removed,  was  w  illinii'  that  all  (daims 
which  the  people  of  Her  Majesty's  (Jovernment  be- 
lieved themselves  to  have  suffered  hy  reason  of  the 
acts  of  the  ( Jovernnient  of  the  United  States  in  assert- 
inji'  her  supposed  ri;^hts  in  Hei'inii'  Sea  should  he 
investiji'ated,  and  full  redress  ati'orded  by  this  l\\<x\\ 
Connnission,  and  consented  to  the  sul)mission  of  these 
ailditional  claims  set  out  Ityname  in  para<>'raph  ."»  of 
the  convention  of  Feliruary,  ISl'fi,  aIthou<ih  not  ad- 
mittinu'  any  liability. 

The  claimants  availeil  themsehes  of  the  oppor- 
tunity atfordeil  for  the  submission  of  their  allejied 
lirievance  antl  proihiceil  witnesses  to  inform  the  Iliji'h 
Commission  of  the  jiTound  of  their  complaint. 

The  I'nited  States,  for  the  iirst  time  informeil  of 
the  nature  of  this  claim,  uisist  that  the  testimony 
clearly  shows  that  the  idaimants  suffered  no  ilama;L;'es 
arisino-  from  any  act  or  omission  on  the  part  of  anv 
otlicer  in  their  .service,  or  on  the  part  of  anv  ai^cut 
<'lothe(l  with  their  authority. 

The  JTrn^'/ryv/',  as  claimed  l>y  the  master  an<l  owner 
of  the  ves.scd.  had  been  sealin<i-  in  the  sprin;^-  of  lSS!t 
on  the  west  coa.st  of  \'ancouver  I.sjand. 

I!HI 


THK.    WANDKlfKK. 


•491 


111 


th 


c.irly  piirtof  May,  ni'tcr  liaviiii;'  ('ii';ii;i('(l 


;)n 


iKliiiu    crew    t(ti' 
)ritcc(Ml('(l    III)    til 


sciiluii;'   111    hcriiii 


■^C'il, 


tl 


until 


l.'.l 
.ir    (' 


IC     \('SS(' 


('  west    cdiist 


vott. 


.f    \- 


iiicuiivcr 


Isl; 


1111 


Iv'.,  IXVi,  liiii! 


(listjiiicc  ot'  lU'iirlv  l,(»(tO 
miles  from  lH'riii<i'  Sea.  wlicii  the  Indians  rct'iisi'd  to 
proceed  furtlier  on  the  journey  toward  Uerinii' 8ea. 

Captain  I'axton,  (|iiestione(l  as  to  the  reason  tor  the 
intorniption  of  the  vo\ii^-e.  testified: 


().  What  was  the  occasion  of  their  yoiii"-  back  on  V( 


A.  They  lieard  Ironi 


mother  vessel    that  the  America 


lis 


ii.,  ir>i)7.  liiii 
ill. 


were  Ihreateninj:'  to  make  seizures,  and  they  refused  to  f;o. 

(,).  What  reason  did  they  ,  jCu  assign  to' von  for  refusiuu' 
toj.0? 

A.  All  they  wanted  to  know  was  whether  1  was  a  ricli 
man  or  a  poia'  man:  if  I  had  lots  of  money  to  ])i\\  them  if  i 
got  seized.     I  told  then  no.     They  then  refused  to  jjo. 

(,►.  Was  there  any  reference  made  bv  them  to  the  fact  of  "•.'..'"'■^'' '' 
their  haviiij;  been 
being  seized  ? 


in  IJering  Sea  before  and  after  (having) 

A;  _^'l\s^    They  said  they  had  sulfered  great  hardshijis  and 

liay  for 


would  not  go  again  unless  I  would  guarantee  their 


what 


kins  they  might  have  when  the  vessel  got  seized 


().  What  did  you  do  then 
A.  Went  back  to  \ictoria. 


K.,  ir.37,  Mr 
i:i. 


Oi 


1  cross-exaininatioii  Captain  I'axtoii  testified: 


<).  Voii  say  these  Indians  threatened  you  about  the  !»tl 
or  iL'th  of  May? 

A.  Yes;  something  like  that. 

i).  And  tliey  were  afraid  they  would  not  get  tlieir  [lay? 

A.  Yes,  sir. 

if.  For  the  skins  they  actually  took  .' 

A,  Yes;  that  is.  if  the  vessel  was  seized,  atnl  I  ilon't  think 
llicil  iCDiiltl  ciihvt: 

().  They  asked  you  if  v 

A.  Yes. 


W.,  ir.ns.  Ii 


oil  were  a  rich  man  or  a  jioor  niiiii '! 


K.,  l.-.:W,  liiii! 
in. 


Q.   If  yon  had  been  <i  r'u-h  mnn  they  innihl  hit 


A.  Y 


es. 


re  (/one; 


<).  Aixl  livi'inisc  jfon  told  thvni  yoti  wire  a  poor  man  thei/ 
troll  I  it  not  III!.' 
A.   \i>.  ' 

The  only  other  witiies-  orodiieed  on  htdialf  of  ( Jreat 
Hritaiii  who  iiad  a  personal  kiiowled^ic  of  the  occur- 


492 


THE    WANDERER. 


I 


W.,  ir>41,  1 
ID. 


w.,  i:.ii 

li.'. 


roiict's  wjijs  AujiUsU'  Hjt'iTO,  iiiiite  of  tlu'  vi-sscl  iit  the 
tiiiu'. 

<}.   hi<l  you  vonthnie  to  t/o  to  licriiiji  Sfuf 

A.  A'",  sir;  irv  liiiil  to  turn  liavk: 

Q.   Whyf 

A.  Heciiiixe  the  IiifliaHU  rc/Hncd  to  yo. 

().  Will  you  say  what  was  tlie  occasion  ot'tlieir  ret'iising  to 
go  to  Bering  Sea* 

A.  The  Indians  were  scared  to  go;  they  were  scared  of 
seizure.  Some  of  them,  I  believe,  had  been  seized  before. ««(/ 
tliri/  had  liceii  tatkintj  with  oturr  Iniliaiis  while  they  were  nwnij 
from  the  rennet  out  huntiiuj,  ami  they  were  seareil  of  the  resael 
Iteiiiy  seized,  and  os  they  knur  that  Ciiiitiiin  I'a.rton  had  iiothimj 
lint  the  ressel  they  were  nfridd  they  would  yet  no  pay  if  they 
were  sei:ed. 
li'x-  i).  Now,  off  Oape  Scott,  on  the  occasion  in  nuestion,  what 
was  the  conversation  ? 

A.  I\V7/,  thiy  .•;•<■»•('  seared,  as  some  of  them  had  heen  seized 
before.  They  were  seared  to  yo  into  the  Iteriny  Sea  a-ith  Captain 
I'a.rton.  They  i:new  that  he  had  nothiny  but  his  ressel,  and 
thy  a-ere  .seared  that  if  the  re.s.tel  was  seized  a;id  he  lost  her 
tiiey  a-oiild  yet  no  pay  for  the  .season's  work. 
\t.^  15IL',  Iiiu>  (^.  U',(,v  there  any  other  rea,son  assiyned  for  their  refusiny  to 
'•  yo  to  lleriny  Sea. 

A.  \o,  sir:  not  that  I  knotr  of 

( )n  cross-cxinniiiiitioii  tliis  witness  tt-stiticil  us  fol- 
lows: 

K.,  i.vil,  line     i^.  Did  unyoiie  on  the  .NVi/)/*///tr  tell  your  Indians  that  there 
'-'•  were  going  to  l)e  seizures  in  liering  8ea? 

A.  /  do  not  knoir  a'here  the  Indians  heard  that  there  a-as 
yiiiny  to  he  seizures  in  lleriny  Sea.  The  first  time  they  spoke 
about  it  was  at  sea. 

(}.   Did  you  knoa-  a-hen  they  heard  it  t 

\.    They  heard  it  in  their  canoes  u-hile  they  were  out  hnutiny. 
Hill'     (i>.  <  attain  I'axton  him.scH' did  not  want  to  turn  around 
because  he  was  afraitl  of  seizure? 

A.  Cajitaiu  I'a.rton,  I  fancy,  a-autcd  to  yo  to  the  lleriny  Sea 
if  he  could  yet  his  Indians  to  yo. 

(.}.  .\ud  it  was  because  the  Indians  did  n<d  wish  to  yo  with 
him  that  he  could  not  yo.* 

A.    Yes;  that  wag  the  reason  that  he  could  not  yo. 
'■"t'     (i).  ('((ufine  yourself  to  the  one  time,  and  tell  us  what  they 
said  tiien. 

A,  The  Indians  said  that  suppose  they  went  to  Bering 
Sea  and  the  vessel   was  seized;  they  knew  that   Captain 


:t«. 


){.,  loll, 
liL'. 


Hi. 


•n4 


THK    WANDERKR. 

I'axton  Iiiul  110  money,  only  the  vessel,  and  tbey  «;oiil(l  not 
get  their  pay;  they  would  loise  their  smuiner's  work.  They 
were  talking  about  their  women  and  little  ones  starving  at 
home,  and  all  that  kind  of  thing. 

^  In  the  pleadinp  fiU'd  in  this  cljiiiu  on  belialf  of 
(xivat  Britain  hufoiv  this  Hioh  ( 'oimnission,  the  alle- 
liJitioH  is  ma(h'  that  iiitoriiiatioii  ol'  the  iirochiniation 
of  thi'  I'lvsidiMit  of  thi'  TiiittMl  States  of  AiiuTica, 
issni'd  on  the  -Jlst  (hiy  of  March,  1S,S9,  cjinic  to  the 
knowledji'e  of  tlie  nu'iiihcrs  of  the  erew  of  tlie  Wdii- 
ilrnr:\m\  there  is  no  testimony  in  the  Heeonl  that 
Captain  I'axton  ever  knew  that  the  proelaniation  was 
iiia(h'  by  the  IVesi<h'nt,  that  any  nieiiiher  of  the  crew 
of  till'  Wiiiiilnrr  liad  any  knowled<>'e  of  snch  a  proc- 
hmiation.  or  that  tlie  refusal  of  the  Indians  to  pro- 
ceed to  l?erin,u'  Sea  was  based  upon  a  knowledoc  iti 
this  prochiniation.  The  only  reason  yixen  foi^  the 
breakiuii'  up  of  the  voya;>-e  is,  as  shown  in  the  testi- 
mony quoted  above,  tiiat  the  Incbaiis  were  afraid 
that  Captain  i'axton  wonid  not  l»e  abh'  to  pa\-  tiiem 
for  the  seals  they  had  already  taken  in  case  the 
\t'ssel  .shonld  lie  sei/.ed. 

If  Captain  I'axton  had  been  a  man  tinancialh-  re- 
sponsilile,  the  Indians.  a<  shuwn  by  the  ti'stimoiiv  of 
both  witiiesses.woulil  liM    ■■  proceedetl  on  their  vovie'v. 

The  Aru'imient  iiled  ..n  lielndf  of  (Jreat  Hr'itani, 
althoiiji'h  containing;'  a  reference  to  tin-  proclamation 
i>f  the  President,  makes  no  (daim  t!i;ir  the  pnxdfmia- 
ticMi  was  the  direct  cause  of  the  interiMiption  of  the 
ir^n/r/r/T/'.v  voya,<4t',  or  that  it  was  even  remotidy  c((n- 
iiected  with  the  refusal  of  the  Indians  to  continue  the 
voyage  Ix-yoiid  Cape  Scott.  Hveii  tlionji'h  the  claim 
were  made,  it  is  not  aiipreliended  that  it  would  be 
seriously  advanced  to  liase  a  demand  for  damages 
upon. 

The  only  evidence  in  the  Kecord,  moreover,  of  the 
publication  of  the  proclamation  of  the  I'resident  of 
the  Cnited  States,  under  date  of  March  •_»!,  issii,  is 
a   h'tter    from    William    Windoiii,    Secretar\-    of   the 


493 


494 


THE    WANllEREK. 


mill 


40. 
51. 


Tivjisurv,  addressed  to  ("jii»t.  I..  (J.  Sliepiird,  ecmi- 
niiindiii;:-  ollicei'  of  the  revenue  cutter  Hiis/i.  Tliis 
letter  coiitiiius  the  first  instructions  ji  .-en  to  tlie  coni- 
niiUiiHn^'  otlicer  of  tlie  cutter  wliich  was  to  jjatrol 
Heriuji'  Sea  in  llie  year  ISS'.I,  and  hears  date  ^lay 
'2l\.  Issii.      In  his  testimony  tlie  captain  of  the   W'aii- 

i;.^i.i;iT.  line ,/,.,■,,;.  .states  that  the  panic  of  the  Indians  occurred 
ahoiit  the  !lth  or  12tli  of  .May.  It  is  certain  that  the 
''"*'  H'diidcrn-  was  in  the  port  of  Victoria  May  ■_'."!,  ISSK, 
for  upon  that  day  a  charter  party  was  made.  'I'lu' 
publication  of  the  proclamation  of  the  President  after 
the  date  of  the  niniiny  of  the  Indians,  and  instruc- 
tions ;.'iven  to  the  captain  of  a  cutter  in  the  service 
of  the  Tnited  Stat«'s  after  the  date  of  the  refusal  of 
the  Indians  to  procee(l  to  IV-rini;'  Sea,  will  a.ssuredl\- 
not  be  advanced  as  the  cause  of  the  interruption  of 
the  voya<:e  of  this  \cssel. 

The  lindin;is  of  fact  of  the  Triljunal  of  Arbitration, 
at  l'aris,discloses  that  the  nature  of  the  warninjis  <iiveii 
t<»  the  various  vessels,  whose  claims  are  scheduled 
between  pa<;('s  1  and  (iO.  was  an  actual  notice  <iiven 
by  an  otticer  of  one  of  the  cutters  in  the  service  of  the 

\«iir.i.)f  thelJovernment  of  the  United  States,  ami  "that  the  said 

I  rill  11 11  III  111-  !•  1  II 

otAriiitia-'**'^'''^'"'  seai'clies  and  seizures  ot  vessels  were  made  l)\' 
tioii  <oii-p„l,]i,.  jirmed  ves.sels  of  the  I'nited   States,  the  com- 

S  t  1  t  11  tO<l  '  ,  ,•1.111  1  1       •  1  1 

uihUt   ihoiuanders  ot  winch  liad,at  the  several  times  when  tliev 

{,Yf^[''^,^,',.'/were  made, from  the  execiitivi  department  of  the  ( Jov- 

ernment   of   tlu-  I'nited  States,  instructions." 

There  is  no  evidence  of  any  actual  notice  yiven  to 
or  any  seizure  of  the   ]Viiiiil(r(r. 

When  the  (Joverntueut  of  the  I'nited  States  con- 
sented to  the  submission  of  this  claim  to  this  Ilij^h 
('omiiiissioii,  it  was  undiiibtedly  represented  h\  the 
amitassador  nejiotiatiu;:'  the  ('onxcution  on  the  part 
of  Her  .Majesty  that  the  testimony  of  the  claimants 
would  develop  the  fact  that  some  actual  warning'  of 
the  nature  foiiiul  by  the  Paris  Triliuual  of  Arbitra- 
tion t<»  have  been  j^iveii   to  certain  other  \'essels  was 


THE    WANDKRKR. 


If  siTvici'  of  the  riiitcd  Stiitc: 


fi'iveii  by  an  offici-r  in  tl 

(invcnimttiit,  or  hy  somcoiu' actiii"'  uikIlt  the  aiitl 


itv  o 


f  tl. 


lid  (Jovi'miiii'iit,  to  tlic  Wdiidc 
tcstiiuoiiy  of  tlu'  clainiants  lias  been  taken, 
apparent  that  the  anil)assatlor  of  Her   M; 


lor- 


rrv. 


Th 

and  it 


IS 


luisiiifonned  by  the  parties  in  interest  as  to  tl 


.f  tl 


ijesty  was 
le  natnre 


ns  clann. 


That  no  damages  can  be  awarded  for  the  interrnp- 
fion  <if  a  voyage,  the  sole  reason  for  which  was  that 
some  inicivilized  Indians  aboard  the  vessel  had 
eeived  from  other  nncivilized  Indian 
nons  rnmor  that   there  wei'( 


re 


li 


•me  diaplia- 


('  seiznres   l)eini>'  made  m 


crniii'  Sea,  is  beyond  (piestion 

The  captain  of  the   Wandnrr  landeil   the  Ind 

who  had  refnsed  to  proceed  with  him,  ami  conclndiny 
that   it  was  too  late  to  pick   np  a   crew  on  the  west 


lans 


495 


coast  of  \'anconver  Island 

another  crew,  i)nt  proceeded  to  \'ict 


R.,  ITiSM.  li 
til : 
maoe  no  attempt  to  secure  k..  ir.Hit,  u, 


oria. 


lie  maile  no  attempt  to  secnre  a  crew  of  white 
hnnters.  and  ^iives  as  the  reason  for  his  failure  to  do 
so  the  fact  that  "A  poor  man  conid  not  atford  to  em- 
ploy them." 

the  rule  of  law  is  well  settled  that  a  claim  for 
damages  can  not  be  based  solely  npun  the  fact  that 
the  peculiar  financial  condition's  of  the  individual 
(•omplainin<>'  were  the  cause  of  tl 
tain    I'axton    had    been    in   a    fi 


R.,  l.Md.  liii 


le   unurv, 


If  < 


ai)- 


nancial    condition   to 


operate^  iiis  Imsiness  he  would  have  had  no  tronbli 
with  his  Indian  crew  and  there  would  lie  ik.  claim 
before  this  Ilij^'h  Commission. 


The  Aro'iiment  on  behalf  of  ( Jreat  IJritaiii  mal. 


Kes  no 


reference  to  the  earnin««s' of   this    vessel   under  the  ":."*:<:(.  H 
jiTeeiiieiit,   in    pursuance  of  which    the    vessel    | 


('ee<led  to  Shunia^^in  Island  at  the  entrance  to  K....^ 
Sea,   sub.secpient    to  the  time  of   the  refusal  of   the 


iro- 


crniii' 


Ind 


lans  to  continue  the  vo\ ; 


ji'e,  and  l)ron"lit  down 


to  Victoria  a  (piantity  of  skins,  tor  which  service  tlu 
ves.sel  received  payment.     ( >n  the  contrarv,  the  claim 


IJ)(i 


THE    WANIHiRER. 


]{.,  lltIK). 


K..  1538, 
10. 


R.,  ir>:i6, 


is  iiiiidc  tor  tlic  viiliic  of  tlic  use  of  tlic  Wainlnci 
''""(liiriiiji'  tlic  I'litii'*'  sciisuii  of  ISS'.I,  iilthoii<>li  she  left 
Victoi'iii  for  ;i  voyM<;«'  to  Sliiiniiij>iii  Isljiml  on  tin- 23(1 
of  Miiy.  I'ossihly  tliis  cliiirti'V  piirtv  is  not  rcfciTcd 
to  Itcciinsc  of  tlif  fiict  tliiit  tlic  cliiirtcr  vjiliic  of  this 
vessel,  viz,  >slt)0  |)er  month,  in  iiddition  to  the  wii^t-s 
of  the  crew  jiiul  the  cjijitiiin.  docs  not  coinpiire  favor- 
iibly  with  the  jiTossly  exjiii'ji'criited  c'iiini  of  >^18.447 
for  the  use  of  this  vessel  from  the  Idtli  diiv  of  .liiK, 
line  or  the  bejiinniiiji' of  the  sciilin<i'  sc.ison,  to  the  "-'(^tli  or 
2r)tli  of  August. 

A  (diiim  is  niiide  in  the  schedule  iittiiched  to  the 
stiitemcnt  of  the  diimiijics  suffered  Itv  the  owners  of 
this  vessel  in  the  iirjiument  on  Iteludf  of  (Jrciit  Hritiiin 
for  "Ica'iil  iind  other  ex|ienses,  ^^'i'lO,"  iiiid  "time  and 
cxiienses  of  owner.  >^'_*(Kt." 

riicrc  is  no  testimony  iiitlic  Recordto  su|i]»ort  either 
(diiim,  iiiid  no  reference  is  made  toan\-  tcstimom'. 
'""'      The  Wiiiiili'iir  was   not  oiitlittc(l   for  a  vo\a<ie  to 
lierinji'  Sea,  and  siitfered  no  loss  on  account  cf  expend- 
itures for  supplies. 

Her  charter  value  would  he  <lcteriiiined  on  a  diti'er- 
•.nt  liasis  than  that  made  use  of  in  estimatinj;'  the 
charter  value  of  a  vess(d  completelv  oilttilted  tor  a 
sealinji'  voxajic. 

The  (iovernuHiit  of  the  I'nitcd  States  contends 
that  no  loss  accrued  to  the  schooner  Wdinhnr  or  her 
owners  as  disclosed  l>y  the  tcstinionv  for  which  it  is 
cliar<ieal)le,  and  that  no  sum  should  he  awarded  the 
claimants. 

KouKKT  Lansing. 
"    Chaklks  W.  Wakken. 


Do.N  M.  Dickinson. 


h       h 


BEHHING  SKA  CLAIMS  COMMISSION 


ARGUMENT 


OS  BEHALF  OF 


GEEAT    BRITAIN 


IN  REPLY 


c^l 


m 


CONTEN'TS. 


Intboductoht 
Co 


Paoe. 


as  to  its  scope . 


i^oncur  as  to  conduct  of  International  proceedings. . 
Notwithstanding  imputations,  have  no  apology  to  offer.    '. 

Compares  favourably  in  mo(i(;ration 

Indulgence  in  harsh  expressions 

Bat/  Fortune  Case  affords  no  excuse  for  delay .\ 

In  case  of  Ship  Jones  delay  was  assigned  as  a  reason  to 

increase  awai'd 

Reply  confined  to  propositions  re(,uiring  further  elumdation. 

United  States  Municipal  law  not  involved 

Paris  Award  supersedes 

Judgment  in  United  States  Courts  "  LaXinfa"...... .... 

T.  U.  Cooper's  name  used  by  Captain  Warren  merely  to 

hold  title 

Even  if  interested,  Cooper  would  have  been  within  his 

rights  and  would  bo  entitled  to  protection 

Findings  of  fact  at  Paris  a  consolidation  of  proposals  on 

both  sides 

Various  Drafts  of  Convention  examined 

Article  I  apparently  ignored 

The  United  States  Argument  aptly  states  the  claims  for 

consideration 

The  Laurent  Case 

The  Barclay  Case 

Incomplete  quotation  from  Wharton  on  domicile  extended '. 

Reference  to  Bluntsohli 

Incomplete  quotation  from  G  Welister  extended ..'...',.. 

In  the  Koszta  Case  the  .lualification  not  borne  out 

Contentions  as  to  Worths  Case  and  Indian  Chief  Case,  con- 
trasted   

Decision  Indian  Chief  Case  supports  British  contention,  . 
British  contention  as  to  right  of  protection  consistent. 
Reference  to  Bar'.s  International  Law 

A  ship  nationalized  by  its  flag  i-i  time  of  peace 

Title  a  matter  of  inve.stigation  in  time  of  war '.'. 

Phillimore  cited 

The  Armistead  claim  could  not  be  based  on  fraud  ;  quota- 
tion extended 

Baker  &  Phmd.v  Insurance  Company.  Contention  dis- 
proved and  British  Case  supported 

The  reference  to  United  States  vs.  Rodyer^,  inapplicable.' ! 

The  case  United  States  vs.  Bntw;  is  not  in  point 

Ri-port  British  Agent  Claims  commission  1S71 ;  Continua- 
tion of  quotation 

Further  quotations  from  authorities  on  International  Law. 

On  DeMartens  —  Phillimore— Marshall  —  ^Vheaton— Hal- 

leck— Swiss— Hai:— Sir  W.  Scott.  .    15. 

Compensation,  or  the  measure  of  damages  ;  comment  on 
authorities 

Reference  to  Protocols  Geneva  Arbitration 


4 
4 
4 

5 
6 
6 

7 
7 
7 
8 

8 
9 
9 
9 

10 

II 

11 

12 

13 
14 
14 

14 
15 

18 

18 
19 


m 

:!; 
■'I 


IV 


I'AUK 

Tim  Aiiiial)/f  lYancy 19 

Tlie  Col II mh   ■'Cam) mid  oilier collisiim casuHliiivuno licivriiig.  1 1) 

TliecaHo  of  the  Lively  ;  circumstances  diilbr 19 

Parsons  un  Shipjiing ;  makes  against   United  States  con- 
tention  ....      20 

Tlio  case  of  the  Cnnada  ;  inaiiiilicable 20 

The  sinking  of  British  CoUirrs  Ijy  (!oriiiany  not  in  point. .  20 

The  case  of  the  lliairatha  claim  iiuliiect  and  coiisciiuential,  20 

The  case  of  the  Washington  point  at  issue  not  decided 21 

Carleton  McGauhij 21 

Kotting  Hill  Case 21 

The  Risohito 21 

The  Parana  Case 21 

Simpson,  London  and  North-western  Railway  Company. .  .  21 

The  case  of  Lnmh  Walker   22 

The  Argentino  quotation  extended 22 

The  Bay  Fortune  Case 22 

Exaggeration  in  other  claims — no  bearing 23 

Knowledge  of  masters  as  to  ownership  of  vessels  immaterial.  24 

Hardships  of  Masters  and  Mates 24 

Legal  and  other  expenses 24 

The  Apollon  case  referred  to 24 

Value  of  seal  skins 24 

Interest 24 

The  Sayirard  Costs  Case 25 

The  additional  claims 25 

Authorities,  cited  not  in  point 25 

Costa  Rica  Packet  Case 25 

Domicile  of  John  A.  Beekfel 26 

Allegiance  and  domicile  of  Danl.  McLean 26 

Domicile  of  Alex  McLean 26 

Domicile  of  Alexander  Frank 26 

Contingencie.s  and  difliculties  in  seal  hunting 26 

Sealing  grounds  in  Behring  Sea  and  duration  of  season. . .  28 

Estimated  Catch 28 

Value  of  seal  skins 28 

Personal  claims  of  musters  and  mates 28 

Attacks  on  witnesses 28 

Comments  on  United  States  arguments  dealing  with  each 

claim 28 

The  Cnro!e7ia 29 

The  !'athjinder—l>i><d 29 

The  Black  Diamond  and  Lily 29 

The  Minnie 30 

Reference  to  compensation  by  Great  Britain  under  the 

modus  Vivendi  of  1891 30 

The  Pathfinder— \d,^0 31 


APPENDICES. 


Appendix  1. — LaNin/a  Case. 

do       2. — Protocols  Geneva  Arbitration. 

do       3. — -Summary  of  papers  relating  to  the  Costa  Rica  Packet 
Case  and  the  decision. 


liKIIIilNc;  SIOA  CLAIMS  COMMI.SSU 


)N 


Mm!  ()\  liEIULF  (IF  (lllHil  I1IIIT.1IX  |.\  iii;ri,v, 


The  rospoctive  contctions  of(i.vat  Britain  and  (lio  United 
ataton  being  already  substunliuUy  before  the  lligii  Coni- 
misHion,  the  reply  on  behalf  of  Great  Britain  need  be  bat 
brief. 

The  counsel  for  Great  IJritain  entirely  eoneur  in  the  idea 
tJittt  all  proeeodings  in  international  arbitrations  should  be 
con.lneted  "in  a  common  spirit  ot  good  will  and  friendship" 
and  notwithstanding  what  is  impnted  to  them  in  that  eon- 
neetionbythe  counsel  for  the  United  States,  they  feel  that 
10  they  have  no  apology  to  offer. 

They  are  confident  that  in  point  of  moderation,  the  lan- 
guage used  m  the  argument  for  Great  Britain  will  favorably 
con.pare  with  that  of  the  argument  for  the  United  States,  in 
which  It  was  deemed  necessary,  to  indulge  in  harsh  express- 
ions and,  as  a  justification  of  its  length,  to  insinuate  that  the 
statements  under  any  caption  whatever  in  the  British  argii- 
ment  treating  of  the  facts  are  invariably  unwarranted  bv  the 
record. 

On  pages  4  and  5  of  the  opposing  Argument  an  excuse  is 
20  sought  to  be.  found  for  tlie  delay  of  the  United  States  to 
furnish  information  respecting  the  seizures  by  allco-cd  ins- 
tances of  similar  delay  by  Great  Britain  in  orther  cases,  and 
particular  reference  is  made  to  the  Fortune  Bay  cases  and  the 
case  of  the  ship  "  Jones  ". 

It  is  claimed  that  in  tlie  Fortune  Bay  cases  the  claims  were 
submitted  on  1st  August,  1870,  whereas  the  reply  from  Great 
Britain  was  on  the  ;ird  day  of  April,  1880.  In  point  of  fact, 
as  the  record  m  that  ease  shows,  on  the  19th  Afarch,  187-,  the 
United  States  representative  in  London  brought  the  matter  to 
30  the  attention  of  Her  Majesty's  Government  for  the  first  time 
with  a  request  to  cause  investigation  to  be  made  into  the 
alleged  facts  of  the  case,  intimating  at  the  same  time,  that 
fuller  information  would  be  transmitted.  On  the  23rd  August, 
Lord  Salisbury  forwarded  to  the  United  States'  representative 
a  report  of  the  Naval  Ofhcer  who  had  been  entrusted  with  the 
duty  of  instituting  en(|uiry  into  the  matter  on  the  spot.  The 
United  States'  Secretary  of  State,  on  the  28th  September  1878, 


-II 


Hcnt  mloHiiati'li  cDminciitinL,  u?)  tliin  report,  whu'h  wiih  conimii- 
iiit'iifed  hy  tlic  ITnitod  States'  Minister  to  fjonl  SaliwlMirv  on 
tlio  12th  Oetolior,  aii(  aimwered  iiy  Linl  Siilishiiry  on  (ho  "tli 
November.  The  <le8|iateli  of  tst  Aiij^nnt,  \HT,\,  rot'orrod  to  in 
tlie  opposing  Ari,'unient  wan  eoniiuMnieatod  to  Lord  Salinliiiry 
on  tlio  13tli  oftiiut  niontli — tlii8desiiiit<'li  was  a  loiii^tliy  review 
of  the  (|iioHtion8  involved  and  it  referred  to  a  oonirnunieiition 
of  the  12th  February,  1880.  wliicli  explained  the  reason  "  why 
a  certain  time  lias  unavoiilui)ly  elapsed." 

In  the  ship  ".loncs"  ease,  a  reference  to  the  award  will  show  10 
tlint   the  delay  was  as-tignod  as  ii  reason  for  increasinLr   the 
damages  which  would  otherwise  have  been  awarded. 

The  United  States  Coinniissioners  in  that  ease  said  :  "that 
the  delay  and  neglect  of  the  British  Uovernnient  in  looking 
into  the  case,  after  most  earnest  remonstrances  of  the  United 
States  had  been  repeatedly  made  to  them,  is  without  excuse, 
and  has  greatly  prejudiced  the  Just  rights  of  these  claimants  ; 
and  that  the  owners  of  the  "Jones"  are  entitled  to  full  com- 
pensation against  Lieutenant  Littlehales,  and  the  Mritish 
Government,  who  have  throughout  justilied  and  sustained  him  20 
as  tiieir  agent,  for  all  injury  which  has,  directly  or  indirectly, 
arisen  from  these  wrongs,  and  for  the  unjust  delay  of  reparation 
of  them  to  the  present  time." 

The  British  Commissioner  assessed  the  damages  at  £6,184 
3s  7f/,  and  the  Umpire  at  .€J0,747  8s  bd,  which  was  the  amount 
awarded. 

(Report  of  Decisions  of  Claims  under  Convention  of  1858, 
p.  106-110.) 


With  regard  to  the  various  propositions  laid  down  in  the 
United  States' argument,  the  counsel  for  Great  Britain  conceive 
that  their  position  having  already  been  fully  defined  in  their  30 
main  argument,  it  will  be  unnecessary  to  take  nji  these  propo- 
sitions scriiitim  ;  they  will,  for  the  present,  confine  themselves 
to  answering  such  of  them  only  us  seem  to  require  further 
elucidation. 


The  propositions  asserted  on  jiages  14-16  of  the  opposing 
argument,  rest  on  the  assumption  that  the  persons  against 
whom  they  are  urgetl  have  violated  u  municipal  law  of  the 
United  States,  namely  section  1966  of  the  Kevised  Statutes. 

As  this  law  only  forbids  the  killing  of  seals  "  within  the 
limits  of  Aliiska  territory  or  in  the  waters  thereof,"   and  the  40 
sealing  operations  which  constitute  the  alleged  oll'ence  took 
place  elsewhere,  such  assumption  is  manitestly  unfounded. 

It  is  useless  to  argue  that  the  United  States  may  bind  their 
citizens  by  extra-territorial  laws.  Section  li)66  applies  o!ily 
to  United  States  territory. 

Equally  unavailing  is  the  argument  that  the  citizens  and 
courts  of  the  United  States  must  accept  as  American  territory 
whatever  their  government  may  claim  to  be  such. 


In  till)  proHont  caso,  tlio  claim  of  tlio  (Jnitod  StatoH*  Exoeiitivo 
is  in  conflict  witli  and  inimt  yioM  to  the  hiris  Award,  which 
huH  the  force  of  hiw  within  the  United  States,  troiitics,  nndoi 
the  constitntion  of  that  country,  hointf  part  of  the  law  of  the 
land. 

The  United  States'  Circuit  Court  of  Appeal  has  so  hold  in 
Whitelaw  (v.  The  United  States  re.  schooner  "La  Ni:ifu." 
(Sec  Federal  Reporter,  Vol.  7"),  p.  513.) 

Tim  judtrnicnt   is  this  case  being  important,  is  set  out  in 
10  full  as  appendix  No.  1,  hereto. 


In  conncelion  with  the  olworvatiima  directed  against  Thomas 
11.  (hooper  in  addition  to  what  has  boon  alreaily  said  bearing 
on  the  point,  {<nile,  p.  i',  attention  shotdd  be  called  to  the 
hict  that  the  party  beneticially  interested  was  Cajit.  J.  D. 
"Warren,  who  merely  used  Coopers  name  for  the  purpose  of 
holding  the  title  to  his  schooners.  Cooper's  evidence  on  this 
point  (U.  p.  1887,  line  33)  is  as  follows  : 

"  Your  name  appears  in  connection  with  these  ships  as 
registered  owner? — A.  Yes. 

20,    "Q-   Had  you  any  real  interest  or  whom  did  you  represent 
m  these  transactions?— A.  Captain  Warren. 

"  Q.  You  allowed  your  mime  to  bo  used  in  coimection  with 
the  registered  ownership?     A.  Yes. 

"Q.  But  you  did  that  in  the  interest  of  Captain  Warren  »— 
A.  Yes. 

"Q.  And  at  his  request?— A.  Yea. 

"  Q.  I  8up{)08c  you  know  next  to  nothing  about  any  of  the 
questions  concerning  these  registers? — A.  Sothing. 


30 


Cross-examination  by  Mr.  Dickinson. 

"  Q.  You  did  not  know  nmch  about  the  ships,  did  you  Mr. 
Cooper? — A.  Xo,  sir. 
_  "Q.  And  hardly  inquired  why  ho  wanted  vou  to  take  the 
title  in  your  name  ?— A.  Never  had  any  interest. 

"  Q.  Did  not  know  except  that  Caiitain  Warren  asked  vou 
to?— A.  That  is  all.  ^ 

"Q.  You  did  not  know  whether  Captain  Warren  wanted 
you  to  take  the  title  to  hold  for  him,  or  to  hold  for  someone 
else,  did  you  ?— A.  lie  wanteil  it  for  himself." 

It  may,  however,  be  added  that  had  Cooper  been  the  party 

40  interested,  as  is  claimed  by  the  Counsel  tor  the  United  States, 

it  would  still  be  of  no  avail,  as  all  that  was  done  took  place  in 

British  territory  and  did  not  constitute  any  violation  of  the 

municipal  laws  of  the  United  States. 

That  Cooper,  a  British  subject,  had  the  right  to  go  to 
Victoria,  as  he  did,  and  allow  his  name  to  bo  used  by  another 
British  subject  for  the  purpose  of  registering  the  schooners  as 
British  vessels  is  beyond  question.  It  is  equally  jilain  that 
these  schooners,  afterwards  used  in  Behring  Sea  by  Warren 
for  his  own  benefit,  were  entitled  to  the  protection  of  Great 
50  Britain. 


It  18  attempted  (p.  25)  to  nmke  a  point  touching  tho  con- 
struction of  the  Claims  C'ommission  by  insisting  that  Her 
Majesty's  government  prepared  every  word  and  line  of  tho 
findings  of  fact  of  the  Paris  Tribunal,  and,  in  that  coimection 
reference  is  made  to  Protocol  XLI,  Paris  Commission,  Vol,  I, 
U.S.,  p.  43.  To  dispose  of  this  it  is  only  necessary  to  look  at 
Protocols  on  pages  3;!  and  38,  Vol.  I,  U.S.,  Paris  Commission, 
from  which  it  will  be  seen  that  the  proposed  ilndiiig  at  page 
43  was  simply  a  consolidation  of  the  proposals  made  on  behalf 
of  the  United  States  and  Her  Majesty  respectively.  10 


!:.fi 


On  pages  41-43,  issue  is  taken  with  the  contei\tion  of  Great 
Britain  that  the  oniit>Jon  of  the  words  "British  subjects"  in 
the  convention  was  a  moans  of  enlargement  of  the  jurisdiction 
rather  than  of  limitation. 

In  support  of  the  British  contention  a  reference  to  the  diiter- 
ent  drafts  of  the  convention  is  invited. 

In  the  first  draft  proposed  by  Groat  Britain,  the  article 
referring  to  the  assessment  of  compensation  simply  stated 
that  :— 

"The  two  commissioners  shall  assess  tho  amount  of  compen-  20 

sation  to  be  paid  in   respect  of  each  claim "  without 

referring  at  all  to  the  nationality  of  the  claimant. 

In  the  counter  draft  proposed  by  the  United  States,  Article 
I,  stated : — 

"The  high  contracting  parties  agree  that  (ill  claims  of  Brit- 
ish sulijects  for  i7ijuries  sitstaineii  btj  thcin  in  BchriiK]  Sea  for 
which  compensation  is  claimed  to  be  due  from  the  United 
States  under  the  Award  of  the  Tribunal  of  Arbitration  shall 
be  referred " 

In  the  next  draft,  tlie  verbiage  of  the  assessment  clause  was  30 
altered  so  as  to  read  : — 

"Tho  high  contracting  parties  agree  that  all  claims  of  Brit- 
ish siih/ects  for  injuries  sustained  and  for  whicli  compei\sation 
is  claimed  to  bo  duo  from  tho  United  States  under  tho  Award 
of  the  Tribunal  of  Arbitration  shall  be  referred ." 

This  clause  was  also  made  the  subject  of  objection  and 
another  draft  was  proposed  in  which  tho  assessment  clause 
read  as  follows : — 

"The  high  contracting  parties  agree  that  all  British  claims 
for  injuries  sustained  and  for  which  compensation  is  claimed  40 
to  be  due  from  the  United  States  under  the  award,  &c.  shall 
be  referred ." 

Siibsotpiontly  this  clause  was  amended  and  the  clause  in  the 
present  convontion.  Article  I,  iinally  agreed  upon. 

It  is,  therefore,  ap[iarent  that  in  tho  negotiations  previous 
to  the  final  settlement  of  the  present  convontion  the  United 
States  contonded  for  terms  which  would  strictly  limit  the  in- 
ipiiry  to  the  claims  of  British  sulyects,  whilst  Great  Britain  all 


along  contended  fora  broader  agreement  and  as  iinally  crystal- 
lized into  Article  I,  „U.  claims  on  account  of  any  person,  it 
matters  not  of  what  nationality,  in  behalf  of  whom  Great 
Britain  is  entitled  to  claim  compensation  are  to  be  considered. 


^  In  dealing  with  the  interpretation  and  scope  of  the  Conven- 
tion, the  United  States  ccnnsel  seem  to  ignore  Article  I, 
thereof,  which  is  most  comprehensive  as  to  the  claims  agreed 
to  be  referred  : — 

10  "The  high  contracting  parties  agree  that  all  claims  on 
account  _ot  mjunes  sustained  by  persons  in  whose  behalf  Great 
liritaui  18  entitled  to  claim  compensation  from  the  United 
btates  and  arising  by  virtue  of  the  treaty  aforesaid,  the  award 
and  the  findings  of  tlie  said  tribunal  of  arbitration,  as  also 
the  additional  claims  specified  in  the  fifth  paragraph  of  the  pre- 
ainble  hereto,  shall  be  referred  to  two  comnnssioners,  one  of 
whom  shall  be  appointed  by  Her  Hritamiic  Majesty,  and  the 
other  by  the  President  of  the  United  States,  and  each  of  whom 
sliali  be  learned  m  law." 

20  "Appended  to  this  convention  is  a  list  of  claims  intended  to 
be  reterred." 

The  different  drafts  interchanged  before  the  terms  of 
reference  were  finally  agreed  upon  are  not  without  interest  on 
the  question  of  construction  or  interpretation  ot  this  Article 
of  the  Convention. 

The  fourth  draft  contained  the  words: 

"The  higli  contracting  parties  agree  that  all  British  claims 
or  injuries  sustained        *         *         *         *        and  including 
those  reterred  to  in  Appendix.  A,  shall  be  referred. 

30      The  fifth  draft  contained  the  Wdrds  : 

"  The   high   contracting   jmrties  agree   that  all  claims  on 
account  of  injuries  sustained         #*##:)(< 


shall  bo  referred,  &c.     (Articie  I.) 

*  *  *  * 


* 


* 


Appended  In  this  cnnrention  is  A  LIST  of  the  claims  intended 
to  lie  referred.     (Article  III.) 

This  language  in  the  next  two  drafts  was  not  changed,  but 
the  latter  part  of  Article  I.  in  the  final  draft  became  :— 

''Appended  to  this  eoneention  is  A  LIST  of  claims  intended 
40  to  be  referred. 

To  adopt  the  felicitous  language  used  in  the  opposing  argu- 
ment (p.  3:J)  "  tlie  Commission  is  limited  to  the  consideration 
of  claims  for  injuries  that  arose  out  of  the  assertion  of  the 
claim  of  the  United  States  to  juiifdictional  rights  in  the  waters 
of  Beiiring  Sea,  wilh  reference  to  seals,  which  is  the  subject 
matter  of  that  Treaty."  (The  Treaty  signed  at  Washington 
2t)th  February,  18!»2.)  ' 


6 


V 


Under  tlic  titles  "  Claimants — British,  domiciled  in  the 
United  States"  and  "  Claimants— Citizens  of  the  United  States" 
(pp.  40-6(j),  a  nnmber  of  authorities  are  cited  and  commented 
upon,  some  of  which  will  now  be  reviewed. 

Reference  is  made  (pi>.  41,  42)  to  the  Mixed  Commissions  of 
18.53  and  1871  in  connection  with  the  "  Laurent"  case  and  the 
"  Barclay  "  case.  The  following  is  the  head  note  of  the  report 
of  the  "  Laurent "  case  ; 

"  Where  claimants,  who  were  originally  British  subjects, 
had  become  domiciled  in  Mexico  ami  continued  to  reside  there,  jq 
engaged  in  trade,  during  war  between  Mexico  and  the  United 
States,  held,  that  they  had  so  fiir  changed  their  national  cha- 
racter that  they  could  not  be  considered  '  British  subjects ' 
within  the  meaning  of  those  terms  as  used  in  the  convention 
for  the  settlement  of  claims  of  British  subjects  upon  the  Gov- 
ernment of  the  United  States."  (Deciaious  of  Commission  of 
Claims  under  Convention  of  1853,  p.  120.) 

The  facts  in  the  "  Barclay  "  case  were  as  follows : 

"  The  claimant,  a  native  born  British  subject,  Iiad  resided 
in  the  United  States  for  many  years  prior  to  1858,  for  the  20 
greater  part  of  the  time  engaged  in  Her  Majesty's  Consular 
Service.  In  1858  he  took  up  his  residi'uce  in  the  State  of 
G  :orgia.  where  he  became  the  owner  of  two  plantations,  leased 
a  .bird,  and  cultivati'd  and  carried  on  all  three.  His  claim  was 
ft'  acts  of  devastation  and  jiillageconnnitted  by  General  Sher- 
nan's  army  on  all  three  of  his  iilantatioiis,  and  for  the  appro- 
f  riat'on  and  occupation  of  two  of  tiiem."  The  United  States 
demurred  to  the  claim. 

The  following  was  the  unanimous  decision  of  the  Commis- 
sioners :  30 

"The  first  thing  to  be  decided  in  this  case  is  whether  the 
Commissioners  have  jurisdiction — which  depends  upon  whether 
the  claimant  is,  within  the  meaning  of  the  Trt'aty,  a  British 
subject. 

"That  he  Is  in  fact  a  I'ritish  subject,  there  is  no  doubt ;  but 
it  is  contended  that  being  domiciled  in  the  United  States,  he 
is  not  one  of  those  intended  b}-  the  franiers  of  the  Treaty  to 
be  included  in  that  term.  It  is  undoubtedly  true,  as  ai>|iear8 
from  various  cases  cited  in  the  arguments  that  the  subject  or 
citizen  of  one  State,  domiciled  in  another,  ac([uire8  in  some  40 
respects  privileges,  and  incurs  liabilitifs  distinct  frimi  those 
possessed  in  right  of  his  original  birth  or  citizenshiji.  I3ut  ho 
still  remains  the  subject  or  citizen  of  the  State  to  which  he 
originally  belonged,  and  we  see  no  reason  to  suppose  that  it 
was  the  intention  of  either  Government  to  put  the  limited 
meaning  on  the  words  '  Jiriiish  subject  '  contended  for  in  the 
arguments  in  support  of  the  demurrer,  so  as  to  exclude 
from  our  jurisdiction  a  British  sul'ject  who  has  never  re- 
nounced his  original  allegiance,  or  Income  naturalized  in  any 
other  country."     (Ibid,  p.  !l.)  50 

The  "Laurent"  case  was  one  of  the  cases  cited  by  the  United 
States  in  the  argument  with  the  "Barclay"  case.  (North 
America  No.  2  1874,Accountsand  Papers,  41,  lxxv,p[i.  t)and9.) 


nJ 


The  quotation  (p.  46)  from  Wliarton  will  be  found  to  be  in- 
complete ;  it  should  have  been  aa  follows  : 

" The  country  whose  'protection'  is  invoked  cannot,  it  is 
conceived,  properly  interpose  in  sucli  a  case  unless  the  muni- 
cipal law,  the  violation  of  which  is  charged,  contravenes 
some  right  of  such  country  acquired  by  treaty  stipulations  or 
otherwise.  The  princii.le  does  not  at  all  interfere  with  the 
nght  of  any  state  to  protect  its  citizens  or  those  entitled  to  its 
protection  when  abroad  from  wrongs  and  injuries,  from  arbi- 
10  trary  acts  of  oppression  or  deprivation  of  property,  as  contra- 
distinguished from  penalties  and  iiunishmonts,  incurred  by  the 
infraction  of  the  laws  of  the  country  within  whose  jurisdiction 
the  sufferers  have  placed  themselves." 

(Wharton,  Int.  Law  Dig.,  vol,  11,  page  434,  sec.  189.) 


1  Kent,  p.  70  deals  with  domicile   in  time  of  war  and   the 
authority  is  therefore  inapplicable.     The  same  as  to   1  Dod 
Adm.,  p.  224. 


20 


A  reference  to  Bluntschli,  (Int.  Law),  cited  in  opposing 
argument  (p.  46)  will  show  that  the  author  is  dealing  with  a 
state  ot   facts  entirely   diHerent  from  and    ir.elevant'^  to    the 


circumstances  of  this  inquiry. 


The  quotation  (p.  46-7)  from  6  Webster's  works  (pp.  522, 
523)  is  aiso  incomplete  ;  it  should  be  as  follows  :— 

"  The  general  rule  of  the  public  law  is,  that  every  person  of 
tuilagehasa  right  to  change  his  domicile;  and  it  follows 
that  when  he  removes  to  another  place,  with  an  intention  to' 
make  that  place  his  permanent  residence,  or  bis  residence  for 
an  indelinite  period,  it  becomes  instantly  his  place  of  domicile- 
*  *  *  #  '  #  ' 

30  "  T/ie  Supreme  Court  of  the  (Jintcd  ^'tates  has  ,leddal  'that 
a  person  who  removes  to  a  ihreu/n  eounlry,  settles  himself  there 
and  eiuiages  hi  the  trade  of  that  country,  furnishes  !»/  these  acts 
such  evidences  of  an  intention  perniane'ntl)/  to  reside  in  that 
country,  as  to  stamp  him  irith  its  national  character ; '  and  this 
undoulitcdly  is  in  full  aeemlanee  aith  the  sentiments  of  the  most 
eminent  writers,  as  well  as  with  those  of  other  hiijh  judicial 
tribunals,  on  the  subject.  No  yoiurnment  has  carried  this  general 
presumption  farther  than  that  of  the  United  States,  since  it  is 
^yell  known  that  iiundrcds  of  thousands  of  persons  are  now 

40  living  in  tiiis  country  who  have  not  been  naturalized  accordiii"- 
to  the  i)rovisions  of  law,  nor  sworn  any  allegiance  to  thi's 
government,  nor  been  doniicilod  amongst  us  by  any  regular 
course  of  proceedings.  What  degree  of  alarm  would  it  not 
give  to  this  vastly  numerous  class  of  men,  actually  liviuir 
amongst  us  as  inhabitants  of  the  United  States,  to  learn  that; 
by  removing  to  this  country,  they  had  not  transferred  their 
allegiance  iVoni  the  govornmcnts  of  which  they  were  originally 
subjects  to  this  goveriunenfr  And,  on  the  other  liand"^  what 
would  be  tiie  condition  of  this  country  and  its  government,  if 

50  the  sovereigns  of  Euroiie,  from  whoso  dominions  they  have 
emigrated,  were  supposed  to  have  still  a  right  to  interpose  to 
protect  such  inhabitants  against  the  penalties  which  niii!,-ht  bo 
justly  incurred  by  them  in  consciinence  of  their  violation  of 
the  laws  of  the  United  States?  In  questions  on  this  subject 
the  chiet  point  to  bo  considered  is  the  animus  manendi,  or 


8 

intention  of  continued  residence;  and  this  mnst  be  decided  by 
reasonable  rules  and  the  general  principles  of  evidence." 
(Webster,  Vol.  VI.,  pp.  522,  523). 

The  italics  sh.jtv  the  portions  not  quoted  in  the  opposing 
argument. 


It  is  argued  (p.  47)  that  in  (he  Koszta  case  the  right  was 
assorted  by  tlu'  United  States  to  proti'ct  a  domiciled  person, 
although  unnaturalized,  against  every  nation  except  the  nation 
of  his  original  cifizenslnp.  This  qualili cation  does  not  appear 
to  be  borne  out  by  a  roforcnco  to  Wharion  from  which  the  10 
quotation  is  made  as  can  be  seen  from  the  following: 

"  *  #  *  and  what  n^asons  can  bo  yivou  why,  so  fur  at 
least  as  regards  jirotoction  to  person  iin<l  [iropcrty  abroad  as 
well  as  at  home,  his  rights  should  not  bocoextonsivc  with  the 
rights  of  native-born  or  natundizod  citizens.  I?y  the  law  of 
niitions  they  have  the  same  nationality;  and  what  right  has 
any  foreign  (tower,  for  the  purpose  of  making  distinction 
between  ihcni,  to  lookbehindtlu'eharacter  given  thorn  by  that 
code  which  regulates  national  intorcoursi'?  When  the  law  of 
nations  deti'rmincs  the  nationality  of  any  man,  foreign  Gov- 20 
ennnents  ari'  bound  to  rcsi)oct  its  decision," 

#•****  "  If  the  conclusions  horetoforo  arrived  at  are 
correct,  the  Austrian  agents  had  n(t  more  right  to  take 
Koszta"  (who  was  an  Austrian  but  domiciled  in  tiie  Ujiited 
States)  "from  the  soil  of  the  Turkish  dominion  than  from  the 
territory  of  the  United  States,  and  Captain  Ingraham  hail  the 
same  right  to  demand  and  enforce  his  release  as  he  would 
have  had  if  Koszta  hail  been  taken  from  American  soil  and 
incarcerated  in  a  national  vessi'l  of  the  Anstrian  Emperor. 
In  this  question,  conlineil  as  it  is  to  the  United  States  and  30 
Austria,  the  place  of  the  transaction  is  immaterial,  unless  the 
Austrian  municipal  laws  extended  over  it  *  *  *  *  * 
The  conclusions  at  which  the  President  has  arrived,  after  a 
full  examination  of  the  transaction  at  Smyrna,  and  respectful 
consideration  of  the  views  of  the  Austrian  Government  thereon, 
as  presented  in  Mr.  llulsemann's  note,  are,  that  Koszta,  when 
seized  and  inqtrisoneil,  was  investeil  witii  the  nationality  of 
tlie  United  States,  ami  they  had,  thereto  e,  the  right,  if  they 
I'hose  to  exercise  it,  to  extend  their  protection  to  him.  *  *" 
Wharton,  Dig.  Int.  Law,  Vol..  11,  pp.  485,  48G.  40 


\-% 


rii 


'  '.* 


Commenting  (p.  54)  on  the  ilecision  of  Commissioner  liayner 
in  Worth's  case  cited  at  p.  50  of  the  British  argument,  the 
counsel  for  the  United  States  siiy  that  decisions  of  that  kind 
are  not  evidence  of  the  rules  of  International  law  as  held  by 
any  nation,  md  even  thi  i'nitrd  St<ttei.  Conqiare  this  doctrine 
with  that  announced  on  page  22  of  the  same  argument  in  the 
following  terms  : — 

"  Decisions  of  municipal  courts  are  received  with  the  same 
linututions  as  above  given  mh  to  municijial  liiws  ;  i.e.,  they  are 
taken  against  the  nation  of  decisicni."  •''0 


The  United  States  counsel  (p.  56)  in  commenting  upon  the 
case  of  the  "Indian  Chief"  cited  in  tlie  British  argument  page 
51,  say  :— 

"  In  that  case  the  person  liad  never  lived  in  America  after 
It  became  a  nation  (not  after  1773)." 

And  again  : — 

"  The  owner  had  lost  tho  benefit  of  his  native  American 
diameter,  it  he  ever  had  any,  which  he  had  not." 

The  following    extract   from   tho   decision   have    j^ossibly 
10  escaped  the  attention  of  the  United  States  counsel  :— 

^."^'1*°  f'""  ''r^'*  *!"'*  ^'"^   ^^'^■"  8"Sg^'8ted,  whether  he 

I,  n!  nf  fi     V         ""American,  not  having  been  pcTsonally 

the  e  at  the  time  of  the  declaration  of  the  indepen.lence  of 

that  country,    I  think  that  is  sufficiently  cleared  u|s  by  the 

circumstance  of  his  being  adopted  as  such  by  the  act  of  the 

Ameiwan  Government,  declaring  him  and  his  family  to  bo 

American  subjects,  and  by  the  oflicial  character  which  that 

C-oyernment  has  intrusted  to  him  ;  I  am  of  opinion,  therefore, 

20  actor '''      '  """"     '*  ^''"*'^*  °^'  '"'  "''*'^''  American  char- 

(3  Eobinson's  Admiralty  Reports,  y.  18.) 


The  British  contention  in  regard  to  the  right  of  jirotection 
18  m  no  way  inconsistent  as  is  more  than  once  suggested  in 
the  United  States'  argument.  Tho  propositions  submitted  bv 
tho  counsel  for  Great  Britain  in  this  respect  are  tho  following : 

(«.)  All  persons  are  entitled  to  the  protection  of  the  country 
of  their  domicile  whilst  out  of  the  jurisdiction  of  their  country 
ot  original  allegiance,  even  against  the  latter. 

{!>.)  The  country  of  original  allegiance  is  entitled  to  protect 
30  Its  own  subjects  or  citizens  whether  domiciled  within  its  ter- 
ritory or  in  a  foreign  country,  except  in  the  latter  case  for  acts 
in  violation  of  the  laws  of  the  country  of  domicile  whilst  in 
tliat  country  or  withm  its  jurisdiction. 

Both  these  propositions  are  supported  by  the  authorities 
already  referred  to. 


In  the  United  States'  Argument  (p.  63)  what  is  called  "  the 
undoubted  rule  in  this  case  "  is  laid  down  on  the  authority  of 
Bar's  private  International  law  as  follows  :— 

'' The.  state  of  <lnmidle  may  extend  prutedion  to  a  domiciled 
iOjomgner  as  against  oilier  countries,  except  the  countni  of  oriainal 
allegiance."  •        -^ 

A  reference  to  Bar  at  tho  place  cited  will  in  no  way  support 
the  proposition.  He  deals  with  a  subject  foreign  to  the  one 
under  discussion  and  says  : — 

"On  the  other  hand,  it  is  no  sign  of  nationality  to  be  subject 
to  tho  system  of  [.rivatc  law  in  any  particular  t^tate,  and  in'tbe 
same  way  It  18  possible  for  a  Stale  to  go  so  far  as  to  extend 
diplomatic  protection  to  persons  who  are  not  in  truth  its 
permanent  subjects.  Conversely,  it  may  refuse  that  protection 
60  to  certain  [lersous,  although  they  do  belong  to  it,  for  the 
n  s — 2 


10 

reason  e.g.  that  they  have  shown  theniselvcB  unworthy  of  this 
protection,  or  by  some  breach  of  the  law  liiive  forfeited  tlieir 
claims  to  such  protection."  (Bar's  Private  Int.  Law.  p.  13')), 

And  in  the  notes  : — 

"The  United  States  extend  diplomatic  protection  to  persons 
who  have  not  as  yet  breomc  citizens,  if  they  are  domiciled  in 
the  United  States,  and  have  made  a  declaration  of  their  inten- 
tion of  becoming  citizens  ;  except  in  (piestions  with  the  coun- 
try from  which  they  came,  if  by  its  laws  the  existing  bond  of 
allegiance  is  not  dissolved,  and  if  the  persons  in  (juestion  have  10 
voluntarily  betaken  themselves  to  her  territory.  Sec,  on  that 
subject,  Wharton,  Jour,  xiii.,  pp.  537  et  seq.  See  Woolsey, 
Int.  Law,  81,  on  the  case  of  Koszta,  which  i)artly  belongs  to 
this  subject." 

"For  instance,  persons  who  arc  under  the  protection  of 
European  powers  in  the  East  belong  in  no  sense  to  that  nation 
wliose  protection  they  enjoy.  See  Vcsque  vs.  Puttlingen,  pp. 
47  et  seq ,  on  persons  styled  dc  facto  Austrian  subjects." 


The  United  States  counsel  argue  (p[i.  68  and  90)  that 
nationality  follows  ownership.  It  will  be  seen  from  an  exam-  20 
ination  of  the  authorities  that  outside  of  the  administration  of 
municipal  laws  and  the  principle  obtaining  in  [)ri/e  courts — 
which  have  to  do  with  a  state  of  war — a  ship  in  time  of  peace  is 
nationalized  by  its  flag.  See  Wharton's  International  Law 
Digest,  vol.  I,  8.  33,  pages  115-117,  under  heading,  Ship 
Nationalized  by  Flag. 

"  Every  merchant  vessel  on  the  seas  is  rightfully  considered 
as  part  of  the  territory  of  the  country  to  which  it  belongs. 
The  entry,  therefore,  into  such  vessel,  being  neutral,  by  a 
belligerent,  is  an  act  of  force,  and  is  /tri)iia/acie  a  wrong,  a  30 
trespass,  which  can  be  justified  only  when  done  for  some 
purpose  allowed  to  form  a  sufficient  justification  by  the  law  of 
nations.  But  a  British  cruiser  enters  an  American  merchant 
vessel  in  order  to  take  therefrom  supposed  British  subjects, 
offering  no  justification  therefor,  under  the  law  of  nations,  but 
claiming  the  right  under  the  law  of  England  respecting  the 
King's  prerogative.  This  cannot  bo  defended.  English  soil, 
English  territory,  English  jurisdiction,  is  the  appropriate  sphere 
for  the  operation  of  English  law.  The  oi'can  is  the  sphere  of 
the  law  of  nations,  and  any  merchant  vessel  on  the  seas,  is,  by  40 
that  law,  under  the  protection  of  the  laws  of  her  own  nation, 
and  may  claim  immunity  uidess  in  cases  in  which  that  law 
allows  her  to  be  entered  or  visited." 

"  I  claim  a  total  immunity  for  the  vessels  of  the  United  States 
'  upon  the  common  and  unappropriated  parts  of  the  ocean  ',  to 
use  the  expression  of  Lord  Stowell,  in  time  of  peace,  under  all 
circumstances.  There  is  no  case  in  which  a  forcible  entrance 
into  them  can  be  justified  by  another  power ;  that  is,  there  is 
no  case  in  which  such  entry  is  a  lawful  act.  It  may  be  an 
excusable  one  under  peculiar  circumstances,  of  entrance  and  of  50 
conduct,  which  might  well  induce  the  aggrieved  party  to 
renounce  all  claim  for  rc[iaration.  As,  for  instance,  if  a  piratical 
vessel  were  known  to  be  cruising  in  certain  latitudes,  and  a 
national  armed  ship  should  fall  in  with  a  vessel  sailing  in  those 
regions,  and  answering  to  the  description  given  of  tiie  pirate, 
the  visitation  of  a  peaceable  merehaiitnum  in  such  case,  with  a 
view  to  ascertain  her  true  character,  could  give  no  reasonable 
cause  of  offense  to  the  nation  to  which  she  might  belong,  and 
whose  flag  siie  carried." 


11 

See  also  ibid  p.  121,  whore  it  is  said  "a  ship  at  sea  is 
regarded  in  Tnternatioiial  law  as  a  portion  of  the  territory 
whose  Hag  she  carries  and  as  subject  to  that  jurisdiction." 

In  Wharton's  Criminal  Law,  9th  edition,  paragraph  269,  it 
is  said  "  As  a  rule,  a  ship  is  viewed  as  part  of  the  country 
whose  flag  she  bears  ;  and  in  conformity  with  this  principle, 
all  offences  committed  on  shipboard  are  regarded  as  cognizable 
by  the  sovereign  to  whom  the  ship  belongs,  no  matter  to  what 
nationality  belongs  the  offender." 

10  The  proposition  contended  for  in  the  United  States'  Argu- 
nient  that  nationality  follows  the  ownership,  implies  that  if, 
for  instance,  a  United  States'  citizen  committed  a  crime  in  open 
sea  on  a  merchant  vessel  carrying  the  British  flag  and  was 
tried  for  the  offence  in  a  British  court  he  could  claim  the  pro- 
tection of  the  United  States  and  ask  to  be  tried  in  the  latter 
country  on  the  ground  that  the  vessel  was  reaHy  the  property 
of  a  citizen  of  the  United  States. 

Such  a  proposition  cannot  be  supported  by  any  authority. 


Authorities  are  cited  by  the  counsel  for  the  United  States 
20  for  the  purpose  of  showing  that  a   foreign  nation  may  go 
behind  the  flag  or  register  of  a  ship.   This  is  undoubtedly  true 
in  time  of  war  but  not  in  time  of  peace. 

In  time  of  war  not  only  docs  the  title  become  a  matter  of 
investigation  but  every  ship  is  required  to  be  provided  with 
complete  and  genuine  papers.  See  the  celebrated  letter  from 
Sir  "W.  Scott  and  Sir  J.  Nicholl  to  the  American  Ambassador 
in  1794,  approved  by  Judge  Story  in  Phillimore  International 
Law,  vol,  3,  3rd  edition,  pp.  666  et  seq. 

Phillimore  at  page  725,  says  : — 

30  "  CCCCLXXXIII.  The  questions  which  are  most  ordi- 
narily discussed  in  Prize  Courts  at  the  hearing  of  the  cause, 
respect  the  nutioiKd  character  of  the  property  ;  and  this  depends 
ordinarily  upon  the  national  domicile  of  the  asserted  proprietor, 
or  upon  the  nature  of  the  title  which  he  asserts  over  the  pro- 
perty ;  but  sometimes  upon  the  habits  and  trade  of  the  ship, 
upon  the  nature  of  tlie  voyage  or  of  the  cargo,  or  upon  the 
legal  or  illegal  conduct  of  the  parties  themselves.  In  all  these 
cases  where  the  property  is  condemned,  it  is  by  fiction,  or 
rather  by  intendment  of  law,  deemed  the  property  of  enemies, 

40  that  is,  of  persons  who  are  so  to  be  considered  in  the  particular 
transaction,  and  is  condennied  eo  nomine." 

And  at  page  735,  he  adds  : — 

"  It  is  no  inconsiderable  part  of  the  ordinary  occupation  of 
a  Prize  Court,  to  pull  off  this  mask  "  (the  national  character 
shown  by  the  flag)  and  exhibit  the  vessel  so  disguised  in 
her  true  character  of  an  enemy's  vessel." 

Distinguishing  between  time  of  peace  and  time  of  war, 
Phillimore,  page  737,  quotes  the  Privy  Council  in  1857,  as 
follows  : 

50  "  During  a  time  of  peace,  without  prospect  of  war,  any 
transfer,  wliich  is  suflicient  to  transfer  the  property  between 


■il 


12 

the  vendor  antl  voiulee,  is  good  ;  also  against  a  cajttor,  if  war 
afterwards  uiioxpoctedly  break  out.  IJut,  in  case  of  war,  either 
actual  or  imminent,  this  rule  is  9ul)ject  to  (jualitication,  ami  it 
is  settled  that  in  such  case  a  mere  transfer  by  documents, 
which  would  be  sutiicient  to  bind  the  parties,  is  not  sufficient 
to  change  the  property  as  against  captors  as  long  as  the  ship 
or  goods  remain  in  transitu." 


1, 


The  United  States  cs.  The  Armistead,  is  cited  (pp,  74  and  78). 
It  should  be  noted  as  stated  at  page  592  of  the  judgment  in 
that  case  that  "  Xo  question  has  been  made  as  to  the  proprie- 10 
tary  interests  in  the  vessel  and  cargo.     It  is  admitted  that  they 
l)olong  to  Spanish  subjects  and  that  thoy  ought  to  be  restored." 

The  real  tiucstion  was  whether  certain  negroes  found  on  the 
vessel  were  proved  by  due  and  sufficient  evidence  to  be  the 
property  of  the  Siianiards  claiming  them  so  as  to  render  it  the 
duty  of  the  United  States  government  to  have  them  returned 
under  the  treaty  in  that  respect. 

The  proofs  relied  on  were  official  certificates  of  ownership 
signed  by  certain  Spanish  authorities.  The  facts  j>roved  were 
that  the  negroes  were  kidnapped,  and  the  papers  therefore  20 
fraudulent  and  untrue  ;  under  these  circumstances  the  Court 
held  that  there  was  no  proof  that  the  property  was  tlie 
claimants'  and  that  they  could  not  rest  their  demand  to  be 
given  the  benefit  of  the  treaty,  on  a  fiaud. 

The  quotation  made  (p.  79)  to  give  a  better  idea  of  the 
opinion,  should  be  completed  as  follows  : — 

"  Nothing  is  more  clear  in  the  law  of  nations,  as  an 
established  rule  to  regulate  their  rights  and  duties  and  inter- 
course, than  the  doctrine,  that  the  ship's  papers  arc  but 
prima  facie  evidence,  and  that,  if  they  are  shown  to  be 
fraudulent,  they  are  not  to  be  held  [noof  of  any  valid  title.  30 
This  rule  is  familiarly  applied,  and,  indeed,  is  of  everyday  occur- 
rence in  cases  of  prize,  in  the  contests  between  belligerents  and 
neutrals,  as  is  apparent  from  numerous  cases  to  be  found  in  the 
reports  of  this  Court ;  and  it  is  just  as  aiiplicable  to  the  trans- 
actions of  c  ivil  intercourse  between  nations  in  times  of  peace. 
If  a  private  ship,  clothed  with  Spanish  papers,  should  enter 
the  ports  of  the  United  States,  claiming  the  privileges  and 
immunities,  and  rights  belonging  to  bona  fi<le  subjects  of 
Spain,  under  our  treaties  or  laws,  and  she  should,  in  reality, 
belong  to  the  suljects  of  another  nation,  which  was  not  en- 40 
titled  to  any  such  privileges,  immunities,  or  rights,  and  the 
proprietors  were  seeking,  by  Iraud,  to  cover  their  own  illegal 
acts,  under  the  Hag  of  Spain  ;  there  can  be  no  doubt,  that  it 
would  be  the  duty  of  our  courts  to  strip  oft"  the  disguise,  and 
to  look  at  the  case  according  to  its  naked  realities.  In  the 
solemn  treaties  between  nations,  it  can  never  be  presumed 
that  either  State  intends  to  provide  the  means  of  perpetrating  or 
protecting  frauds  ;  but  all  the  provisions  are  to  be  construed 
as  intended  to  be  applied  to  bona  tide  transactions." 

(Peters'  Reports,  Supreme  Court,  Vol.  15,  page  594-595.)       jq 


18 

The  wiHeoniiiikor  rs.  Vhmv  .  Iiisunuict!  Company  ia  refor- 
rod  to  (p.  75)  as  lioldiiij;  that  tlio  words  "  Aiiu'ricaii  vessel," 
as  a  warranty  of  national  cliaractor.is  fulfilled  by  a  vessel  wholly 
owned  hy  Anicriean  citizens  although  not  ri'gisterod  as  a 
vessel  of  the  United  States. 

The  following  (inotation  from  the  judgment  in  that  case 
will  correct  this  interpretation  and  materially  support  the  case 
of  Great  Britain  : 

"The  last  ol>jection  is,  that  the  plaintiff  had  not  shown  a 
10  compliance  with  his  warranty.  The  insurance  was  upon  'the 
good  American  .«hip,  called  the  Rodman.'  These  wordsamount 
to  a  warranty  that  the  ship  was  American,  according  to  the 
settled  construction  of  the  phrase,  both  in  this  and  in  the  Eng- 
lish courts  (1  Johns  Cas.  341.  2  Johns.  Gas.  168.  3  Bos.  and 
Pull.  201,  506,  510,  514,  531.  6  East's  Rep.  382).  A  warranty 
that  the  property  is  American,  undoubtedly  means  that  it  is 
not  only  so  in  fact,  but  that  it  shall  be  clothed  with  the 
requisite  evidenccof  its  American  character,  for  the  purpose  of 
protection,  and  in  reference  to  the  law  of  nations,  under  the 

20  sanction  of  which  the  voyage  in  (piestion  was  to  be  conducted. 
(1  Johns.  Cas,  365.  2  Johns.  Cas.  148.)  It  was  proved  that 
the  ship  was  owned  by  the  plaintiff,  and  that  he  was  an 
American  citizen ;  and  from  the  case  we  are  to  conclude,  that 
the  ship  had  all  the  papers  requisite  for  an  American  vessel, 
except  an  American  register.  The  case  is  somewhat  equivocal 
upon  that  point,  but  this  we  think  to  be  the  better  construc- 
tion of  it  If  she  had  not  the  documents  required  by  our 
treaties,  it  ought  to  have  been  made  a  distinct,  substantive 
gronnd  of  objection  at  the  trial.     The  case  states  that  '  the 

30  defendant's  counsel  moved  for  a  uon  suit,  on  the  ground  that 
the  vessel  was  warranted  by  the  policy  to  be  an  American 
vessel,  and  that  the  plaintiff"  had  produced  no  proof  of  her 
being  such  ;  but  that,  on  the  contrary  it  appeared,  from  the 
testimony  in  the  cause,  that  she  was  only  a  sea-letter  vessel, 
without  an  American  register.'  This  was  an  admission  that 
she  was  a  sea-letter  vessel,  though  the  competent  proof  of  that 
fact  is  not  disclosed  in  the  case,  and  the  defendants  evidently 
placed  their  niotion  for  a  non  suit  on  the  single  ground  of  the 
want  of  a  register.     If  anything  was  wanted  to  "show  a  com- 

40plianco  with  the  warranty,  except  the  register,  it  ought  to  have 
expressly  b/en  so  stated  The  presumption  raus't  be,  after 
verdict,  and  upon  this  ease,  that  every  objection  was  supplied. 
We  are  then  reduced  to  this  single  point',  was  the  want  of  a 
register  a  breach  of  the  warranty  ?  At  the  time  the  policy 
was  underwritten,  there  wore  two  kinds  of  American  vessels, 
the  one  registered,  iind  the  other  unregistered  and  carrying  a 
sea-letter,  or  iin  otficialcertiticateof  ownershii),  and  both  kinds 
vyere  recognized  by  law,  as  American  vessels,  though  the 
former  was  entitled  to  higher  privileges  under  the  laws  of 

50  (k)ngress.  (Luws  U.  S.  \'ol.  6.  72).  But,  in  reference  to  the 
law  of  nations,  and  to  security  upon  the  high  seas,  both 
species  ot  vessels  were  equally  entitled  to  protection  as  Ameri- 
can property.  There  was  no  use  in  retjuiring  a  register  for  any 
object  within  the  purview  of  the  warranty.  The  want  of  it 
did  not  enhance  the  risk.  'It  is  a  known  and  established  rule,' 
says  Sir  William  Scott,  in  the  case  of  the  \'igilantia,  (I  Rob. 
113,)  that  if  a  vessel  is  niivigating  under  the  pass  of  a  foreign 
country,  she  is  considered  as  beiiring  the  national  character  of 
that  nation  under  whose  pass  she  sails;  she  mukes  a  part  of 

60  its  navigation,  and  is  in  every  respect  liable  to  be  considered 
as  a  vessel  of  that  country." 

(Johnson's  Reports,  New  York,  Vol.  8.  pp.  319-20.) 


M 


ffltw 


14 

Art  to  Unitod  Stiitew  rs.  Rogers,  citod  (p.TS)  the  t'liets  of  tlio 
case  oil  ret'oreiico  show  it  to  be  entirely  iimpplicablo  to  the  pre- 
Bcnt  inquiry. 

The  i)oiiit  involved  niid  decided  was  thai  the  Courtfl  of  the 
United  States  liiive  jurisdiction  under  a  certain  section  of  their 
Revised  Statutes  to  try  a  person  for  an  assault  committed  on  a 
vessel  belonging  to  one  of  its  citizens  when  such  vessel  was  in 
the  Detroit  River  out  of  the  jurisdiction  of  any  particular  State 
(See  150  U.S.  Rep.,  p.  240). 

No  question  whatever  arose  as  to  what  would  have  been  the  ^" 
result  if  the  vessel,  although  flying  the  American  flag,  and 
regist(!red  as  an  American  ship,  had  been  in  fact  or  in  part  the 
property  of  a  foreigner  whose  name  did  not  appear  on  the 
register. 

The  facts  show  beyond  question  that  the  vessel  was  in  every 
sense  a  United  States'  vessel  and  the  judgment  must  be  read 
in  light  of  that  fact. 

The  case  of  the  United  States  rs.  Brune  is  referred  to  (p. 76) 
as  holding,  "  that  the  registry  was  not  even  prima  facie  evi- 
dence of  the  ownership."  The  indictment  in  that  case  charged)  -" 
"  that  Brune,  being  second  mate  of  the  brig, "  Fame,"  oinved  by 
a  citizen  and  citizens  of  the  United  States,  did  forcibly,  felon- 
iously and  piratically  receive,  aid  and  abet  in  confining  and 
detaining  on  board  such  vessel  400  negroes  with  intent  to 
make  them  slaves  contrary  to  the  form  of  the  Act  of  Con- 
gress." 

The  judgment  was  as  follows  : — 

"  The  very  gist  of  this  indictment  is  the  ownership  by  a 
citizen  or  citizens  of  the  United  States.  The  Act  of  Congress 
makes  it  so.  The  indiotnicnt  properly  alleges  it,  and  it  must  30 
of  course  be  proved.  The  registry,  though  it  may  perhaps  be 
evidence  of  ownership  lor  some  purposes,  is  not  even  prima 
/WciV?  evidence  of  it  in  a  criminal  prosecution  like  this;  nor 
would  oomiiion  reputation  be.  You  must  show  the  fact  of 
ownership,  as  j-oii  generally  show  other  facts  ;  proving  it  by 
witnesses  whom  the  dofendant  may  cross-examine.  The  man, 
who  swears  that  he  owns  the  vessel,  may  have  sworn  to  an 
untruth,  and  she  may  not  be  owned,  either  '  wholly  or  in  part, 
by  any  citizen  of  the  Unitod  States '  at  all.  And  even  if  the 
persons  set  forth  in  the  registry  as  owners,  were  owners  at  the  40 
(late  of  it,  their  ownership  may  in  point  of  fact  have  ceased 
before  the  alleged  piracy,  though  the  proper  entry  or  no  entry 
may  have  been  made  at  the  custom  house."  (Wallace  Jr's 
Reports,  2,  pp.  206,  267.) 


The  quotation  (p.  81)  made  from  the  report  of  the  British 
Agent  on  the  Claims  Commission,  1871,  is  advantageously 
continued  by  adding  tlie  two  immediately  succeeding  jiara- 
graphs,  namely  : — 

"But  if  the  theory  of  Iler   Majesty's   counsel  he  the    true 
one,  that  these  claims  are,  in  fact,  the  claims  of  llcr  Majesty's  50 
Government  in  respect  of  persons  entitled  to  the   protection  of 


16 

hor  laws,  it  would  bo  no  aimwor  to  tlio  claim  brought  by 
Sliormau  himself  to  show  that  ho  was  an  Amorioan  citizoii," 
"  And  this  caso  thus  milly  uffords  a  touchstoiio  for  tho  en- 
tiro  doctrine  iiropounded  by  Ilor  Maji'sty's  counsel.  Tho 
claims  to  bo  passed  upon  by  the  XTItli  'Article  of  the  Treaty 
are_  not  claims  of  Her  Majesty's  *Jovenimont  against  the 
United  States,  or  claims  of  the  United  tStates  against  Her 
Majesty's  (iovernment,  but  are  simply,  as  stateil  by  the  Treaty 
itself,  claims  of  citizens  or  subjects  of  the  one  government 
10  against  tho  otlior  government.  As  such  they  are  not  to  be 
measured  by  the  rule  determining  what  are  grounds  of  inter- 
national complaint  by  one  nation' against  another,  but  where 
tho  mnnicipal  laws  of  the  two  countries  agree,  by  the  rule  of 
such  municipal  laws,  as  to  what  constitutes  a  valid  claim  grow- 
ing out  of  acts  committed  by  the  adverse  party."  (Ueport 
Mixed  C^mmiissiou  British  and  American  Claims  under  Treaty 
1871,  page  567.)  ' 


In  further  support  of  the  liriiish  contention  on  the  several 
points  hereinbefore  dealt  with,  referer  ce  is  made  to  tlie  foUow- 
-0  ing  authorities: — 

F.  do  Martens,  Traito  de  Droit  luternational  : 

_  "  De  iios  jours  on  admet  comnie  nxionic  du  droit  interna- 
tional positif,  (jue  rOc(5an  est  entii'renient  iibre  et  (lu'aucun 
Etat  no  pout  y  o.xercer  sa  puissance,  quand  memo,  en  fait,  il 
aurait  les  moyciis  d'y  dieter  la  loi  aux  autres  jiays.  II  s'ensuit 
quo  tons  les  navires,  quand  ils  sont  en  pleino'mer,  obeissent 
exclusivcment  ti  I'Etat  dont  ils  portent  le  pavilion.  Cette 
regie  sert  de  point  de  depurt  a  beaucoup  d'autres  regies  juri- 
di(jues  de  droit  international  public,  prive,  ou  criminef,  qui  out 
30  iiicontestablornont  une  immense  ''oportance  pour  les  relations 
et  les  transactions  universelles  pur  mer." 

11).  page  496,  sec.  97  : 

"Le  principe  de  la  libertc  de  I'Ocean  est  fertile  en  conse- 
quences juridi(iues  et  pratiques  extrSmement  importantes. 
L'Ocean  est  libro  pour  la  navigation  et  les  communications  de 
tons  les  peuples.  II  ne  pout  Stre  interdit  h.  aucune  nation  de 
s'adonnor  en  pleine  mer  a  la  pSche  et  ;\  d'autres  ontreprises 
pacitiques.  Si  toutes  y  posscdent  un  droit  cgal,  il  s'oiisuit 
qu'aucun  fitat  ne  pout  y  imposer  ses  lois  aux  autres,  faire 
40  passer  en  jugemeut  dos  navigateurs  ou  marins  etrangera,  ni 
arreter  ou  visiter  des  navires  d'un  autre  pays.  Tons  les  navires 
qui  so  trouvent  en  pleine  mer  sont  soumis  exclusivement  h,  la 
juridiction  de  leur  propre  Gouvernement.  Tous,  et  particu- 
lieremont  les  ilottes  et  les  navires  de  guerre,  y  sont  consideres 
comme  des  portions  detachoes  de  la  patrie." 

Sir  Robert  Phillimore,  in  his  Commentaries  on  International 
Law,  vol.  1,  page  458,  says  : — 

"It  will  be  sufficient  to  remark  here  that  the  right  of  juris- 
diction and  authority  over  a  merely  commorant  foreigner, 
50  though  he  bo  sabditus  tempornrius,  does  not  extend  to  compel- 
ling him  to  render  civil  or  military  services,  or  to  the  power 
of  tryii\g  or  punishing  a  foreigner  for  an  offence  committed  in 
a  foreign  land.  ...  So  long  as  there  are  ditferent  states 
with  different  laws,  no  single  state  can  have  a  right  to  punish, 
by  its  own  laws,  citizens  of  another  state,  for  offences  cora- 


■I  ' 


I; 


16 

niitted  in  places  over  which  it  lias  tin  jiirigilictinii,  or  to  piiiiirth 
uccordinj;  to  whut  it  may  coiifcivc  to  lie  tlu'  hiw  of  tlio  jthice 
whoro  tho  oU'ciico  was  coininittod. 

"Thirt  assumed  jurisdiction  is  (h)iilily  rcprohcii8il)le.  Kirst, 
as  i)einjj  nsurpatioii  of  tho  ri^'lilH  of  aiiotlier  statu;  and,  sec- 
ondly, as  hoinj;  a  violation  of  what  lictftcrjiistly  calls  a  ruling 
nuixim  ("horrschendc  Orundsat/")  of  all  ('onstitutional  States, 
that  no  nuin  can  ho  withdrawn  from  tho  trilainal  to  which  ho 
is  naturally  and  legally  subject,  and  compelled  to  plead  before 
iinotlier  (I[e)ltor,  66;J,  n.)" 


10 


Chief  Justice  Marshall  of  tlie  Supremo  Court  of  the  United 
iStatos,  in  Hobo  vs.  llimely,  4  Craneh,  p  27i>,  states: — 

"  It  is  conceded  that  tlio  logislaticm  of  every  country  is 
territorial,  that  beyond  its  own  territory  it  can  only  all'eet  its 
own  subjects  or  citi/ens.  It  is  not  easy  to  conceive  a  power  to 
execute  a  municipal  law,  or  to  enforce  obedience  to  tluit  law, 
without  the  circle  in  which  that  law  operates.  A  power  to  seize 
for  the  infraction  of  a  law  is  derived  from  tlu>  Sovereign  and 
must  be  exercised,  it  would  seem,  within  those  limits  which 
circumscribe  the  Sovereign  Power.  The  rights  of  war  may  20 
be  exercised  on  the  high  seas,  because  war  is  carried  on  upon 
the  high  sens  ;  but  the  pacific  rights  of  sovereignty  must  be 
exercised  within  the  territory  of  the  Sovereign.  If  these  pro- 
positions be  true,  a  seizure  of  a  person  not  a  subject,  or  of  a 
vessel  not  belonging  to  a  subject  made  on  tho  high  seas  for 
the  breach  of  a  municipal  regulation,  is  an  act  which  the  sove- 
reign cannot  authorize." 

Wheaton,  Elctueuts  of  Int.  Law,  Part  .11,  Sec.  78,  p.  183, 
says  :— 

"  The  second  general  principle  is  tliat  no  State  can,  by  its  30 
laws,  ilirectly  affect,  bind,  or  regulate  pioperty  beyoml  its  i>wn 
territory,  or  control  persons  whi>  do  not  reside  within  it,  whc- 
tlier  they  be  native-born  subjects  or  not.  Thisisa  consequence 
of  the  first  general  principle  (b'oelix.  Droit  Int.  Privi',  s.  9)  ; 
a  ditforent  system  which  would  recognize  in  each  State  the 
power  of  regulating  persons  or  things  beyond  its  territory, 
would  exclude  the  equality  of  rights  aniong  diitcrent  States, 
and  the  exclusive  sovereignty  which  belongs  to  each  of  them 
(Foelix,  Droit.  Int.   I'rive,  s.  10)." 


Again  (Part  II,  Sec.  lOfi,  p.  169)  :— 


40 


"  Both  the  public  and  private  vessels  of  every  nation 
on  the  high  seas  and  out  of  the  territorial  limits  of  any 
other  State  are  subject  to  the  jurisdiction  of  the  State  to 
which  they  belong.  Vattel,  >ays  the  donniin  of  a  nation 
extends  to  all  itsiirst  possessions;  and  by  its  possessions  we  are 
not  to  understand  its  territory  only,  but  all  the  rights  ('ilroits') 
it  enjoys.  And  he  considers  the  vessels  of  a  nation  on  the 
high  seas  as  portions  of  its  lerritor}'  (Liv.  1.,  cap.  19,  sec.  210  ; 

Liv.  II,  cap.  7,  sec.  .sQ) This  jurisdiction,  which 

the  nation  has  over  its  public  and  private  vessels  on  the  high  50 
seas,  is  exclusive  only  so  far  as  respects  otfences  against  its  own 
municipal  laws.  Piracy  and  other  offences  against  the  law  of 
nations  being  crimes  not  against  any  particular  State,  but 
against  all  mankind,  may  be  punished  in  the  coni])ctent  Tri- 
bunal of  any  country  wlicre  the  otlcnder  may  be  found  or  into 
which  he  may  be  carried,  although  committed  on  board  a  for- 
eign vessel  on  the  high  seas." 


17 

TTallock,  Int.  Law,  vol.  i.,  p.  215,  sayn : — 

"  rultlic  imd  priviito  vossels  on  llio  hij{h  hoiih  nml  out  of  tlio 
torritiiriiil  limitn  of  any  otlior  Stiitc  iirc^  HiiliJcM't  lo  tlio  jnriscru^ 
tioii  of  tlio  Stiito  to  wliicli  tlu'y  lu'loii^.  'riuioci'iui  is  ciniinioii 
to  all  inaiikiiul,  ami  may  l)u  sucooHHivoly  iiacil  by  all  as  tlicy 
have  oocartioii." 


Sir  Travors  TwisH,  in  his  book  on  tbo  Law  of  NatioiiH,  i  liap- 
tor  X.,  HucH.  157-8  Hays: — 

"  Tlio  riffbt  of  civil  atul  criminal  logiHlation  in  rcHpcct  of  all 
10  property  and  pcrsoim  within  the  territory  of  a  nation  is  an 
incident  of  the  right  of  empire.  It  follows,  therefore,  that  the 
laws  of  every  nation  bind  of  nulnral  rijfht  all  property  situate 
within  its  territory,  as  well  as  all  persons  resident  therein, 
whether  they  l>e  natives  or  strangers,  ami  that  they  control 
and  regulate  all  the  acts  done  or  conti'acts  entered  into  within 
its  limits V  nation  cannot  by  its  laws  directly  bind  pro- 
perty which  is  beyond  the  limits  of  its  territory,  nor  directly 
control  persons  who  are  not  resident  therein.  This  is  a  neces- 
sary consequence  of  the  proposition  advanced  in  the  preceding 

20  section  ;  for  it  would  be  inconsistent  with  thi;  absolute  character 
of  territorial  empire,  if  the  laws  of  a  nation  coidd  bind  peri-ona 
or  property  within  the  territory  of  another  inition  and  so  con- 
trol the  operation  of  the  laws  of  the  latter  nation  within  its 
own  territory.  Rodenl)urg  has  accordingly  observed  that  no 
Sovereign  Power  can  of  right  set  law  licyond  the  limits  of  its 
territory.  '  Constat  igitur  extra  territorium  legem  dicerc 
ncmini  licere ;  idipie  si  fecerit  ijuis,  impune  ei  non  pareri, 
quippe  iibi  cesset  statutorum  fundanicntiim,  cessant  robur  et 
jurisdictio  ("  Rodenburg  de  Statutes,"   Tit.  I,  chap.  :5,  sec.  1).' 

30  Boullenois  lays  down  a  similar  rule  :  '  Of  strict  right,  all  the 
laws  by  a  Soveivign  have  only  force  and  authority  throughout 
his  dominions  (Boullenois,  "  Traite  des  Statuts,"  I'rincipes 
Gcneraux,  VI).  Vattel  concurs  in  this  view  when  he  says  : 
'  The  Kmpire  united  to  the  domain  establishes  the  jurisdiction 
of  the  nation  within  its  tei'ritory.  It  is  its  province  or  that  of 
its  Sovereign  to  exercise  justice  in  all  the  places  under  its 
empire ;  to  take  cognizance  of  the  crimes  that  are  committed, 
and  the  ditl'erenccs  that  arise  in  the  country  (Vattel,  '•  Droit 
des  (4ens,"  H.  II,  sec.  84).'     No  law  accordingly  is  operative, 

40  prupriii  rigoir,  beyond  the  limits  of  the  territory  of  the  State 
which  has  set  it  (Martens,  '  Precis  du  Droit  des  Gens,' sec. 
86).  '  There  is  no  doubt,'  writes  Chancellor  Kent  (Kent's 
Commentaries,  Tom.  II.,  sec.  467) '  of  the  truth  of  the  general 
l)r()position  that  the  laws  of  a  country  have  no  binding  force 
beyond  its  own  territorial  limits,  and  their  authority  is  admit- 
ted in  other  States  not  ('.c  /tropn'o  rii/i'ir,  but  (,'■  ctiDiilntr,  or  in 
the  language  of  llubcr  "(iuatenuK  sinepra'judicio  indulgentium 
fieri  potest, ' "  itc.  Anothei'  eminent  American  authority. 
Chief  Justice  Parker,  has   recognized  a  similar  doctrine  in  an 

50  elaborate  judgment,  in  the  course  of  which  he  observes  that 
'  the  laws  of  a  State  cannot  by  any  inherent  authority  be 
entitled  to  respect  cxtraterritorially,  or  beyond  the  jurisdiction 
of  the  States  which  enact  them  ;  this  is  the  necessary  result  of 
the  independence  of  distinct  Sovereignties  (Blanchard  v. 
Russell,  13  Massachusetts  Report,  p.  4.'  " 

"P.  285,  sec.  173.  The  open  sea  is,  strictly  speaking, 
millius  tirriloriiiiii.  No  nation  can  claim  to  exercise  jurisdic- 
tion over  its  waters  on  any  ground  of  exclusive  possession.  On 
the  other  hand,  it  is  the  public  highway  of  nations  upon  which 

HO  the  vessels  of  all  nations  meet  on  terms  of  e(iualit3',  each  vessel 
carrying  with   the  laws  of  its  own  nation  for  the  government 

13  ri— 8 


J  J  .'.< 


18 

of  those  on  board  oF  it  in  their  mutual  relations  with  one 
another,  but  all  subject  to  the  common  law  of  nations  in  mat- 
ters of  mutual  relation  botweon  the  vessels  themselves  and 
their  crews." 

Hall  (Int.  Law,  part  1,  cap.  2,  sec.  10,  p.  51)  sa^'s: — 

"  And  it  being  a  necessary  result  of  indcpcndonce  that  the 
will  of  the  state  shall  be  exclusive  over  its  territory,  it  also 
asserts  authority,  as  a  general  rule,  over  ail  persons  and  things, 
and  decides  what  acts  shall  or  shall  not  be  done  within  its 
dominion.  10 

"It  consequently  exercises  jurisdiction  there  not  only  wilh 
respect  to  the  members  of  its  own  community  and  their  pro- 
perty, but  with  respect  to  ibreign  pen-sons  and  property. 

'■  But  as  jurisdiction  over  the  latter  is  set  up  as  a  consequence 
of  their  presence  upon  the  territory,  it  begins  with  their  en- 
ti£i::''o  and  ceases  with  their  exit,  so  that  it  camiot,  except  in  a 
particular  case,  to  he  mcnticnied  latrr,  be  enforced  when  they 
have  left  the  country  ;  and  with  respect  to  acts  done  by  foreign 
persons,  it  can  only  be  exercised  with  reference  to  such  as  have 
been  accorajilishcd,  or  at  least  begun,  during  the  presence  20 
within  the  territory  of  the  persons  doing  them.  In  principle, 
then,  the  rights  of  sovereignty  give  jurisdiction  in  resjioct  of 
all  acts  done  by  s'  '  '-icts  or  foreigners  within  the  limits  of  the 
State,  of  all  projiei'ty  situated  there  to  whomscwver  it  nniy 
belong,  and  of  tln)Be  acts  done  by  members  of  the  community 
outside  the  State  territory  of  which  the  State  may  choose  to 
take  cognizance.  In  practice,  however,  jurisdiction  is  not 
exercised  in  all  these  directions  to  an  e(iual  extent." 

Dodson's  Admiralty  Eeport,  vol.  2,  pp.  243-4.  Case  of  the 
£ie  Louis,  Sir  "W.  Scott  says  : —  30 

"  Upon  the  first  question,  whether  the  right  of  search  exists 
in  time  of  peace,  I  have  to  observe,  that  two  principles  of 
public  law  are  generally  rect)gnized  as  fundamental.  One  is 
the  perfect  oquaiity  and  entire  independence  of  all  distinct 
States.  Relative  magnitude  creates  no  distinction  of  right; 
relative  imbecility,  whether  permanent  or  casual,  gives  no  ad- 
ditional right  to  the  more  powerful  neighbour;  and  any 
advantage  seized  upon  that  ground  is  mere  usurpation.  This 
is  the  great  foundation  of  public  law,  which  it  nuiinly  concerns 
the  peace  of  mankind,  both  in  their  jiolitic  and  i)rivate  capaci-  40 
ties,  to  preserve  inviolate.  The  second  is,  that  all  nations 
being  equal,  all  have  an  e(puil  right  to  the  uninterrupted  use 
of  the  unappropriated  parts  of  the  ocean  tor  their  navigation. 
In  places  where  no  local  authority  exists,  where  the  subjects 
of  all  states  meet  upon  a  footing  of  cTitire  eepiality  and  inde- 
pendence, no  one  Stale,  or  any  of  its  subjects,  has  a  right  to 
assume  or  exercice  authority  over  the  subjects  of  another.  I 
can  find  no  authority  that  gives  the  right  of  interruption  to 
the  navigation  ot  States  in  amity  upon  the  high  seas,  excepting 
that  which  the  rights  of  war  give  to  both  belligerents  against  50 
neutrals." 


Coming  now  to  the  (juestion  of  "Compensation,  or  the 
measure  of  damages,'"  (]ip.  US  ef  vf/.)  it  is  proposed  to  again 
comment  upon  some  of  the  authorities  cited  in  the  United 
States  argument. 

As  tlie  United  Stiites  counsel  (pp.  iM-ltT)  take  issue  with 
the  statement  madein  the  Uritish  Argument  {\>.  '25)  that  under 


19 

the  Geneva  arbitration  "uanin  in  lien  of  iirospective  profits 
wiif  iillowci],"  it  l)oc()ino8  important  to  liiive  tlie  fnll  text  of 
Protiti^olrt  XXIX.,  XXX.,  and  X  XXI.,  wiiicli  will  bo  [)rinto(l  iis 
an  ap])endix  iuToto,  and  which  will  deti'rniine  between  the 
rospectivo  contentions  of  tiie  two  govcrnmonta. 


The  following  is  taken  f 'om  the  judgment  of  Mr.  Justice 
Story  in  the  "  Amiable  Xarcy "  referred  to  in  the  United 
States  Argument  (pp.  08-101) : 

"  And  if  this  were  a  suit  against  the  original  wrong-doers, 
10  it  might  be  proper  to  go  yet  farther,  and  visit  upon  them  in 
the  shiipe  of  exemplary  damages,  the  proper  punishment 
wiiieh  belongs  to  such  hnvless  misconduct.  But  it  is  to  bo 
considered,  lliat  thi>  is  a  suit  against  the  owners  of  the  [iriva- 
teer,  upon  wIiotu  the  law  has,  from  motives  of  ]K)!icy,  devolved 
a  respiiiisihility  fui'  tlie  conduct  of  ilie  officers  and  crew  em- 
ployed by  them,  and  yet,  from  the  nature  of  the  service,  they 
can  scarcely  ev.T  be  able  to  s(!cnre  to  themselves  an  adequate 
indemnity  in  ea.-.^s  of  loss.  They  are  innocent  of  the  demerit 
of  this  transaction,  having  neiliierdirected  it  nor  countenanced 
20  it,  nor  partii'ipated  in  it  in  the  slightest  degree.  Under  sucli 
circumstances,  we  are  of  opinion,  that  they  are  bound  to  repair 
all  tlie  real  injuries  and  personal  wrongs  sustained  by  the 
libellants,  but  they  are  not  bound  to  the  extent  of  vindictive 
damages."     (Wheaton's  Reports,  Vol.  3,  pages  558-9). 


The"  Columbus"  cited  (p  101)  ln'ingacaseof  a  collision  hap- 
pening by  negligence  has  no  bearing  on  this  case,  where  the 
seizures  were  made  with  the  intenticjn  of  preventing  the  carry- 
ingon  of  a  legitimate  business.  This  remark  applies  to  all  cases 
of  collisions  cited.  In  the  "Co'iimhus"  case  the  judge  in  his 
30  decision  asks  if  the  vessel  had  heen  bound  on  a  voyage  to  the 
East  Indies  with  a  valuable  cargo  "for  the  transportation  of 
which  not  only  would  the  owners  be  entitled  to  a  large  amount 
of  freight  but  the  master  might  U"  entitled  to  considerable 
contingent  jirolits  from  the  aJIowan-^s  made  to  him  on  the 
voyage.     Could  the  court  tiwide  the  amount  of  these?" 


This  question  he  answer*  in 


iiive. 


lint  if  one  other  itf^  ha  >  the  case  |hm«.  namely, 
that  the  collision  v  i-  >''ith  the  ol)je<-t  of  pre- 
venting   the    mastei          i.    .-,    ...   .k-    contingent    [.niotite, 

40  would  he  then  have  j-iven  thiK  mm»f  mtmw&r'f 


In  the  case  ot  the  "  Lm^"  aUteifp.  KM )  the  ciroBflwCamu:'^.* 
liardly  justilieo  un  allowance  tor  \om  of  ]rr*4ii«  as  wiH  ai|>{;«<ar 
from  the  following  portion  of  !tfn»  jn4g.Miei»t : — 

"  Ibi(  the  most  iiuportant  »t»*ni,  tftwtt  <*♦'  Iohh  ',t(  profits,  de- 
serves a  Tiiore  e.Kact  consideri6fn>n.  I  sImkiUI  hati*  be»'ri  glad 
lo  have  seen  an  autlior..y  iippi'<"''iiis"  of  hucIi  a-n  allowance 
under  circumstances  like  the  proHi'uf.  Iifow  have  fhe«-  profits 
been  lost  '^  The  voyage  was  not  iirwt.«n  u)...  nor  men  ttMr  of 
being  pursued." 
60      (Uallisoifs  Reports,  Vol.  I.,  p.  :ii4.) 


20 

Parsoiia  on  Shipping,  cited  on  page  104,  is  an  authority 
against  tlie  United  States'  contention.     The  antlior  says  : — 

"  In  ineasurini;-  the  (hininii'e  in  ii  case  of  eolHsion,  all  the 
direct  and  iinmediate  eon8e([neneea  are  to  he  taken  into  con- 
sideration, as  loss  of  freight,  detention,  expense,  and  the  like, 
the  rule  heing  rrstitnlio  in  inttgriini.  Whether  danniges  are 
to  he  allowed  for  the  detention  of  the  injured  vessel  while 
undergoing  rejiairs,  may  not  ho  certain,  hut  the  later,  and  we 
think  the  hetter  rule,  allows  them." 

And  in  a  note,  the  following  ajjpears  : —  10 

"  In  some  of  the  cases  ahove  cited,  and  in  '  Smitli  vs.  Condry, 
1  TTow.  28,  they  were  \w\  allowed.  But  tlie  last  case  has  heen 
virtually  overruled  hy  a  nidro  I'ecent  case  in  the  same  court, 
and  we  consider  tlu;  well-settled  rule  of  law  now  to  he  that, 
when  a  vessel  is  run  into  while  perforniing  a  particular  voyage, 
or  while  engaged  in  the  usual  course  of  her  employni.'Ut,  the 
profits  which  she  would  have  made  hut  for  the  accident  are  to 
l)e  allowed.  Thus,  in  the  (ia/.elle,  at  ,y'//).,the  gross  freight  for 
the  voyage  was  allowed,  deilucting  from  it  the  expenses  inci- 
dent to  its  receipt,  such  as  wages,  jiilotage,  lighterage,  ton-  20 
luige,  \c."     (Parsons  on  Slnpiiing,  vol.  1,  pp.  588-540. 


In  the  case  of  the  C"/"^/",  cited  (p.  105)  the  circumstances 
were  of  such  a  peculiar  nature  as  to  make  it  iuapplicahle  to 
the  present  inquiry. 


Attention  having  heen  called  to  the  claims  l)y  Great  Britain 
against  Germany  for  sinking  Brit'.sh  colliers  in  the  Seine,  in  187 1 , 
cited  (p.  107),  it  will  he  interesting  to  notice  with  Vvliat  prompt- 
ness Prussia  acknowledged  her  liishility.  The  vessels  were 
sunk  on  the  23rd  Decemhcr,  1870,  and  Count  Bismark  wrote 
acknowledging  liahility  on  the  8th  January,  1871.  It  should  -50 
also  he  noticed  that  the  Prussian  government  claimed  that  the 
sinking  was  done  "to  avert  immediate  danger";  no  intention 
to  stoj)  the  carrying  on  of  a  legal  husiness  was  suggested.  The 
case  appears  to  have  no  application,  and,  at  the  utmost  it 
would  rest  on  the  authority  ot  Mr.  Uotliery,  possihly  tlie  re- 
gistrar of  the  Adnuralty  Court. 


In   the  ease  of  the  "  Hiawatha"  umler  the    P.ritish   and 
Anierirnn    Mixed   Coirniirisiuii   of  May,  1871,  referred   to  (\i- 
lOS),  the  claim  was  ■'  lor  indemnity  for  the  loss  of  commission, 
which,  hut   for  tlie   ciipture,  wotdd   have  heen   realized  hy  the  40 
claimants  on  the  sale  of  portion  of  the  cargo." 

"A  demurrer  was  interposed  hy  the  Ignited  States  that  tlie 
injury  complained  of  was  indirect  and  conse(|uential,  and  not 
within  the  jurisdiction  of  the  ("ommisHion. 

"  The  demui'ivr  was  unanimously  sustained  hy  the  Coiu- 
missioners  and  the  eluiii'  disinissi'd." 


21 

The  case  of  the  "Washington"  is  referred  to  (p.  108),  and 
tlie  stiitenient  iimdo  tlnit  "wliile  the  ruling  is  not  expressly 
made  against  prospective  catch  it  is  clear  tliat  that  item  was 
not  allowed."  A  perusal  of  the  report  donionstnites  that  no- 
thing was  said  to  show  how  the  claim  was  raaile  up  and  cer- 
tainly the  (Commissioners  passed  no  judgment  on  the  point 
now  at  issue ;  the  case,  therefore,  cannot  he  fairly  relied  on  by 
either  party.  The  counsel  of  the  ITnited  States  are  not  justi- 
tlod  in  drawing  the  conclusion  which  to  them  appears  to  be  so 
10  clear. 


In  analysing  the  case  of  Tarleton  vs.  AtcGiauley  (I.  Peake, 
page  270)  the  counsel  for  t'lo  United  States  (p.  110)  erron- 
eously treat  it  as  a  case  of  trespass,  when  as  a  fact  it  was  merely 
an  action  on  the  case  in  which  the  damMge  alleged  constituted 
the  gist  of  the  action. 

The  decision  in  the  case  of  the  Nottir.g-Tlilj  (!)  P.  D.  100) 
referred  to  (p.  Ill)  rests  upon  the  fact  "  that  the  loss  of  mar- 
ket was  an  accidental  loss  not  necessarily  nor  naturally  con- 
sequent upon  the  delay  in  the  arrival  of  the  cargo." 

20  Exception  is  taken  to  the  comments  on  the  Jiisolufo,  p.  Ill, 
'J'he  report  of  the  Registrar  was  appealed  from.  The  question 
in  dispute  was  the  amount  of  damage  awarded  and  not  a  mere 
question  of  costs,  and  the  case  was  cited  and  followed  by  the 
House  of  Lords  in  the  Argentino,  14  Appeal  Cases,  520. 


In  the  case  of  the  "  Parana"  (2  P.  D.  120)  referred  to  on 
same  page,  the  rule  laid  down  by  Cockburn,  O.J.,  Meilor  and 
Field,  J.J.,  ill  Simpson  rs.  London  and  N'ortli-western  Railway 
Comiiany  (I  t}.  H.  I).  77),  namely,  tht;';  "the  principle  is  now 
settled  that  whenever  either  the  object  of  the  sender  is  specially 

''•0  brought  to  the  notice  of  the  carrier,  orcircumstancosare  known 
to  the  carrier  from  which  the  object  ought  in  reason  to  be 
inferred  so  that  the  object  may  be  taken  to  have  been  within 
the  contemplation  of  both  parties,  damages  may  be  recovered 
for  the  natural  consequences  of  the  failure  of  that  object,"  was 
iidojited  and  the  damages  claimed  were  denied  solely  because 
the  court  came  to  the  conclusion  that  they  were  not  within 
the  contemplation  of  the  parties  at  the  time  of  the  contract. 

In  that  case  of  Simpson  rs.  the  London  and  North-western 
Railway  Company,  tlie  court  found  that  the  damages  claimed 

40  were  within  the  contemplation  of  the  parties  at  the  time  of  the 
contract,  and  dealing  with  the  (|ucstion  of  the  uncertainty  of 
ascertaining  the  amount  of  the  damage  sutl'ered,  the  Ciiief 
Justice  remarked  : 

"  As  to  the  supposed  impossibility  of  ascertaining  the  daimiges 
!  think  (here  is  no  such  impossibility ;  to  some  extent  iio 
doubt  they  mu.it  be  matter  of  speculatioii,  but  that  is  no  reason 
for  not  awarding  any  danuigcs  at  all." 

Justices  Meilor  and  Field  entirely  concurred. 


22 

On  page  111,  the  statement  is  made  that  in  Lamb  r.  "Walker 
(3  Q.  11,  389)  it  was  held  that  prospective  damages  could  be 
recovered,  and  tliat  that  case  was  overruled  in  l^ailey  v.  Mit- 
chell (11  App.,  1'27).  The  questions  in  these  cases  were 
merely  as  to  whether  "  the  damages  resulting  from  one  and 
the  same  cause  of  action  must  be  asaessad  and  recovered  once 
and  for  all,"  and  as  to  whether  the  damages  arose  from  inde- 
pendent and  distinct  causes  of  action. 


The  second  pai.igraph  quoted  from  Lord  TTerFchcll's  judg- 
ment in  the  case  of  the  "  Argontino"  (p.  113)  should,  wUen  10 
completed,  read  as  follows  : — 

"Where  no  claim  is  made  in  respect  of  loss  arising  from  the 
owner  having  been  deprived  of  the  eiirning,-^  of  a  voyage  which 
was  in  contemplation,  and  the  engagement  for  whieli  had  been 
secured,  it  would  be  right,  and  is  no  doubt  the  usual  course,  to 
award  damages  under  the  name  of  dernurruge  in  respect  ot  the 
loss  of  earnings  which  it  must  reasonably  have  been  antici- 
pated would  ensue  during  the  time  of  detention.  But  where 
sucli  a  claim  is  made,  as  in  tlie  present  case,  the  owner  cannot, 
I  think,  be  allowed  in  addition,  as  a  separate  item,  demurrage  20 
in  respect  of  the  time  the  vessel  was  under  repair.  If  he 
obtains  as  damages  the  loss  which  he  has  sustained  owing  to 
the  loss  of  the  employment  he  had  secured  he  is  put  in  the 
same  position  as  if  there  had  been  no  detention."  (14  App. 
Cases,  523.) 


As  exception  is  taken,  (p.  114,)  to  th(>  statement  made  in 
the  British  Argument  in  connection  with  the  Fortune  Bay 
cases,  the  point  at  issue  may  be  set  at  rest  by  the  following 
quotation  from  Mr.  Kvart's  letter  of  the  1st  August,  1879,  (72 
British  State  papers,  1880-1881,  p.  1282.)  30 

"After  a  comparison  of  all  the  depositions  furnished  to 
both  governments,  the  United  States'  (ioverinnent  is  of  opinion 
that  the  following  fait,^  will  not  be  disputed  : — 

1.  That  22  vessels  Ijfloiiging  to  citizens  of  the  United 
States  *  ^  *  *  went  from  Gloucester,  a  town  in 
Massachusetts,  United  States,  to  Fortune  15ay,  in  Newfound- 
land, in  the  winter  of  1877-78,  for  the  purpose  of  procuring 
herring. 

"  2.  That  these  vessels  waited  at  Fortune  Bay  for  several 
weeks   (from   about    the    16lb    December,  1877,  to    the    tjth  ^q 
Jaiuiary,  187S),  for  the  expected  arrival  ot  schools  of  herring 
in  that  harbour. 

"3.  That  on  Sunday,  the  6th  .lanuary.  1878,  the  herring 
entered  the  Bay  in  groat  luunbers,  and  that  four  of  the 
vessels  sent  their  boats  with  aeines  to  commence  fishing  oper- 
ations, and  tlie  others  were  procoeillng  to  follow. 

"4.  Tliat  the  jiarties  thus  seining   were   compelled   by    a 
large  and  violent  mob  of  the  inhaliitants  of  Newfoundland  to 
take  up  their  seines,  ilischarge  the  fish  already  inclosed,  and 
abandon  their  tisliery,  and  in   one  case  at   least  the  seine  was  gQ 
absolutely  destroyed. 

"  5.  That  these  seines  were  being  usid  in  the  interest  of  all 
the  United  States  vessels  waiting  for  cargoes  in  the  harbour, 
and  that  the  catcli  undisturbed  would  l:a\e  been  siitHcient  to 
load  all  of  thein  with  ])rolltable  cargoes.  The  great  ([uaniity, 
of  fish  in  the  harbour,  and  the   liict  that   the    United   Slates 


28 

vessels,  if  permitted  to  fish,  would  all  have  obtained  full 
(^nrgoes,  is  admitted  in  the  British  depositions. 

"  If  the  Americans  had  l)eeii  allowed  to  secure  all  the 
herrings  in  the  bay  for  themselves,  which  tli-y  could  have 
done  that  day,  they  would  have  filled  all  their  vessels,  and  the 
neighbouring  fishermtii  would  have  lost  all  chance  on  the  fol- 
lowing week  days."     (Deposition  of  dames  Searwell.) 

"  The  Anicrican.s,  by  hauling  herring  that  day,  when  the 
Englishmen  could  not,  were  robbing  them  of  their  lawful  and 
iWju.st  chance  of  securing  their  share  in  them  ;  and,  further  liad 
they  secured  all  they  had  barred,  they  would,  I  believe,  have 
filled  every  vessel  of  theirs  in  the  bay."  (Deposition  of  John 
Cluett.) 

"  See  also  the  aflidavits  of  the  United  States'  Captains." 
"6.  That,  ill  consequercG  of  this  violen.'e,  all  t'le  vessels 
abandoned  the    fishing-grounds,  some   witliout  cargoes,  some 
with  very  small  cargoes,  purchased  from  the  natives,  and  their 
voyages  were  a  loss  to  their  owners." 

on  1    "7"  '^'^'^^'  ^''°  ^^'''"li'i.iJ:  "'"^  conducted  at  a  distance  from  any 
-i"  land  or   hshing    privilege,  ..r  the  oecn],ation  of  anv   British 
subject  (See  affidavits  of  AVillard  G.  Kode,  Charles  liovle  and 
Michael  B.  Murray.")  '     ' 

"8.  That  none  of  the  United  States'  vessels  made  any 
further  attempts  to  fish,  but  three  or  four,  which  wore  delayed 
111  the  neighbourhood,  purchased  small  supplies  of  herring 
(See  British  dei.ositions  of  John  Saunders  and  Silas  Fudge' 
wherein  is  stated  that  the  United  States'  vessels  ordy  remained 
a  tew  days,  and  then  after  the  Olh  Januarv,  no  lish  came  into 
the  harbour).  All  the  United  States'  alfidavits  show  that  the 
OJ  United  States'  vessels  were  afraid  to  use  their  seines  after  this 
and  that  they  left  almost  immediately,  most  of  them  comint^ 
home  in  ballast."  •" 


A  good  deal  of  ingenuity  and  labour  is  displayed  in  the 
United  States  Argument  (p.  133  and  following)  for  the  pur 
pose  of  8ho\^■ing  that  with  regard  to  claims  in  years  gone  by, 
presented  by  persons  alleging  themselves  to  bo  injured  by  the 
act  of  a  foreign  nation,  the  amount  of  such  claims  were  often 
greatly  exaggerated,  and  particular  reference  is  made  to  claims 
presented  under  the  Claims  Conventions  of  1853  and  1871; 
40  also  to  the  Claims  Convention  between  the  United  States  and 
Mexico  of  1 868,  and  to  the  claims  before  the  arbitrators  at 
Geneva. 

What  argument  can  be  drawn  from  the  fact  that  exagger- 
ated claims  were  presented  in  other  cases,  unless  it  is^eon- 
tendeil  that  because  there  was  exiiggcration  in  previous  cases, 
a  presumption  arises  that  there  is  in  this  case  ! 


At  page  187  a  tabulated  statement  is  set  i  .rth  purporting  to 
show  the  amount  ol  each  claim  as  presented  at  I'aris,  as  pre- 
sented at  Victoria,  and  as  now  presented,  and  it  is  argued  that 
50  because  the  claims  as  now  presented  appear  to  be  larger  than 
those  originally  presented,  therefore  they  must  be  exaggerated. 
It  should,  however,  be  observed  that  what  ;ne  called  the  claims 
as  presented  at  X'ictorla,  merely  represents  a  lump  sum  stated 


24 

in  the  formal  pleadings  in  each  claim  by  the  counsel  for  Great 
Britain  before  they  had  any  precise  knowledge  of  the  evidence 
that  would  be  adduced,  and  that  the  claim  as  now  presented  is 
the  result  of  judicial  investigation  attended  with  all  the  guaran- 
tees iiocessary  to  test  the  truthfulness  of  the  statements  made. 


At  this  stage  oi  ilie  inquiry,  after  it  has  boen  shown  that 
there  is  a  total  absence  of  evidence  that  any  of  the  vessels  were 
American  vessels,  it  will  be  hav('ly  necessary  to  refer  to  what 
is  said  in  tlie  United  States'  Argument  (p.  138)  as  to  the  knowl- 
edge of  the  masters  and  mates  tnerein  mentioned  "of  actual 
American  ownersliip  of  the  vessels."  luir  will  it  be  necessary  to 
again  review  the  evidence  bearing  on  the  hardships  of  the 
masters,  mates  and  crews. 


10 


Exception  is  taken  in  the  United  States'  Argument  (p.  141) 
to  claims  for  "legal  and  other  expenses,"  (except  what  was 
paid  out  for  the  defeiu^'  of  the  8hi[is  of  British  owners  in  the 
courts  of  Alaska,  appearing  in  the  liritish  schedule  of  claims 
before  the  Paris  tribunal)  on  the  grounds,  1st,  that  there  is  no 
proof  that  any  legal  expenses  were  incurred  or  of  the  amount 
thereof,  and  "ind,  that  such  expenses  are  never  allowed  in  20 
cases  of  marine  tort,  or  in  cases  of  wrongful  capture  at  sea. 

As  to  the  proof  of  legal  expenses  having  been  incurred  and 
of  tlie  amounts,  it  will  be  found  in  the  evidence  referring  to 
each  particular  case,  and  to  the  testimony  of  Mr.  Belyea,  II., 
pp.  lf)20,  1.  tiO,  1738,  1.  5.  See.  also.  R.,  p.  100,  1.  -38 ;  p  870, 
1.  56;  p.  871,  1.  9;  p.  917,1.  lo;  ]>.  1100,1.  ■-8;  p.  1113,1.  43. 

Amongst  other  cases  where  legal  expenses  of  this  nature 
were  allowed,  tlie  case  of  "Tlie  Apollon,"  (W^heaton's  Rep., 
vol.  9,  p.  379)  may  be  cited,  where  Mr.  .lustice  Story,  in  ren- 
dering the  judgment,  said  : —  80 

"The  ifth  item,  allowing  uOO  dollars  as  counsel  fees,  is,  in 
our  ()(iinii)n,  unexceptionable.  It  is  the  common  course  of  the 
Admiralty,  to  allow  expenses  of  this  nature,  either  in  the 
shape  of  dan:agcs  or  as  part  of  the  costs.  The  practice  is  very 
fami'iar  m  the  prize  side  of  the  court  ;  it  is  not  less  the  law  of 
the  court  in  instan(;c  causes,  it  resting  in  sound  discretion  to 
allo>.'.  or  refuse  the  claim." 

With  respect  lo  what  is  said  at  p.  141,  under  the  caption  of 
"The  value  of  seal  skiimsj,"  the  counsel  for  (Jrcat  Britain  are 
unable  to  agree  witii  th<;  statement  of  tticts  therein  made,  or  40 
with  tlu^  conclusion  drawn  therefrom. 

The  same  thiinr  may  be  said  of  the  argumetit  under  the 
caption  of  "  Interest."  (p.  I4;i)  with  this  addition,  and  the 
authorities  referred  to  do  not  bear  out  the  contention  of  the 
United  States'  couhboI. 


25 

Reference  to  the  protocol  of  the  Pans  tiibunal  will  in  no 
way  meet  the  contention  quoted  by  the  United  States 
counsel  (p.  150)  from  the  British  i.rgumont,  in  connection  with 
the  bayward  Costs  case,  nor  will  it  support  the  contention  that 
that  claim  wa..  never  received  by,  nor  never  was  before  the 
Fans  tribunal.  On  the  contrary,  from  the  protocol  it  appears 
that  the  United  States'  counsel  attempted  to  have  the  claim 
rejected  on  the  technical  pomt  only  that  it  was  presented  at 
too  late  a  date;  and  this,  they  never  even  pressed  to  a  ruling. 

10  An  argument  is  sought  to  he  drawn  ({,.  149)  from  the  fact 
that  m  the  claim  as  originally  presented  in  the  case  of  the  "  W 
I .  Say  ward,"  there  appearing  certain  charges  for  legal  expenses, 
the  reference  in  the  schedule  ot  the  convention  to  the  costs  in 
the  "  Sayward  "  case  was  intended  to  cover  such  char-'-es  To 
this  it  will  suffice  to  say  that  similar  charges  were  made  in 
several  of  the  other  cases;  hence,  how  came  the  costs  in  one 
case  only  to  be  made  an  additional  claim?  Moreover  the 
legal  expenses  incurred  by  the  owner  of  the  "  W  P  SaywLrd" 
being  already  included  in  the  schedule,  pp.  1  to  60,  as  is  ad- 

20  mitted  by  the  counsel  for  the  United  States,  why  should  it  be 
made  the  subject  of  an  additional  claim  ? 

As  to  the  authorities  referred  to  under  the  heading  of  the 
costs  of  the  "  Sayward  "  case,  they  will  be  dealt  with  at  the  oral 
argument. 


Referring  to  what  is  said  under  the  caption  "  The  additional 
claims"  (pp.  153-158),  Great  Britain  rests  for  the  present  on 
what  has  been  already  said  in  the  original  argument. 


Beyond  what  has  been  said  in  commenting  upon  or  review- 
ing  several  cases  cite.l  in  the  United  States'  argument,  it  may 
0"  be  added  that  a  reference  to  a  considerable  number  of  other 
cases,  also  cited,  will  show  that  they  are  not  in  point  or  that 
they  do  not  bear  out  the  conclusions  drawn  therefrom  by  the 
United  States'  counsel.  See  specially  the  following  authorities 
relied  upon : — 

Carlisle  v.  United  States  (p.  47) ;  argument  of  -ludge  Hoar 
(pp.  63-4) ;  Henry,  the  author  of  Admiralty  Jurisdiction  and 
Procedure  (p.  74);  the  case  of  "The  Experiment"  (p  76)  • 
HalJerk  and  Phillimore  (p.  7tJ) ;  the  case  of  Tiie  Sifters  (p.  y8)  • 
0  Attorney  Generals' opuiions  (,,.  81);  the  case  ot  the  Caro^ 
40  line  (p.  82) ;  the  case  of  the  Mary  Lowell  (p.  85) ;  the  Ken. 
worthy's  case  (p.  89),  and  Smith  v.  Condry  and  other  cises 
(p.  109). 


\  I 


Reference  i  •  the  atbitration  proceedings  in  the  case  of  the 
"  t!osta  Rica  i  vket,"  from  the  report  thereof  presented  to 
Her  Majesty's  1    rliamont  in  May,  1897,  will  be  found  interest- 
ing as  having  a  b.  iring  up)n  several  of  (lie  questions  under 
li  s — 4 


1  ■•' 


26 

consideration  in  this  inquiry.  Tlio  decision  in  that  case  was 
given  by  M.  df  Martens,  the  eminent  Jurist  and  u  well  known 
authority  upon  questions  of  international  law. 

A  summary  of  the  facts  and  the  text  of  ^r.  dc  Martens's 
decision  are  printed  iis  appendix  3,  hereto. 


It  is  not  deemed  necessary  to  quote  the  evidence  showing 
that  John  A.  T>echtel  has,  for  the  last  18  or  20  years,  been  a 
resident  at  Victoria.  The  quotation  I'roni  the  record  in  the 
United  States'  argument  (p.p.  170-172)  cstablishos  this  liict 
beyond  question.  10 

As  to  Daniel  .McLean,  he  became  n  naturalized  British  sub- 
ject on  the  lOth  October,  18,s6,  K.  I!t47,  line  40).  That  fact 
of  itself  is  sutHcient  to  make  the  claim  good.  It  may,  however, 
be  added  that  not  only  is  there  an  absence  of  any  evidence 
of  his  domicile  being  in  the  United  States  at  the  time  of  the 
seizure  ;  but  on  the  contrary,  ho  was  then  in  charge  of  the 
seized  vessel  as  master  thereof;  she  being  a  British  registered 
vessel,  sailing  frt)m  the  {)ort  of  Victoria,  to  which  port  she 
returned.  Also,  on  the  20th  October,  188G,  and  lOth  Nover., 
ber,  1887,  he  made  alKdavits  that  he  was  born  at  Sydney,  20 
Cape  Breton,  in  the  province  of  Nova  Scotia,  and  that  he  was 
a  resident  of  Victoria,  British  Columbia,  (K.  pp.  1965-7.) 

Alexander  McLean  was  also  a  native  of  Cape  Breton,  and 
a  resident  of  Victoria  from  1884  to  1889.   E.  431,  line  63. 

The  fact  that  Alexander  Frank  was  domiciled  at  Victoria, 
where  he  was  carrying  on  his  business,  appears  from  his  evi- 
dence (R.  1993,  line  50)  and  from  the  affidavits  printed  on 
page  210  of  the  Exhibits. 


The  counsel  for  the  United  States  under  the  heading  of 
"  Uncertain  character  of  seal  hunting,'  argue  that  there  are  so  30 
many  contingencies  and  dilticulties  connected  with  seal  hunt- 
ing as  to  make  impossible  any  method  of  computing  an  esti- 
mated catch  which  will  be  just,  and  in  support  of  this  they  refer 
to  certain  portions  of  the  evidence. 

Other  portions  of  the  evidence  may  easily  be  quoted  to  show 
that  the  difficulties  in  seal  hunting  are  not  any  greater  than  in 
other  fishing  industries. 

To  take    for   instance  the  principal  witness  for  the  United 
States,  Alex.  McLean,  possessed  of  such  universal  experience 
as  to  be  invoked  by  the  United   States' counsel  as  the  best  40 
authority  on  every  question  of  fact  in  this  inquiry  : 

Q.  "  Now,  when  you  were  out  mackerel  fishing,  sometimes 
the  vessel  gets  some  and  sometimes  she  does  not  ? 

A.  "  Yes,  sir. 

Q.  "  A  nd  if  during  your  si-asou's  mackerel  fishing,  some 
one  said  to  you  you  must  not  go  mackerel  fishing,  don't  you 
thiidc  y  ju  would  run  a  chance  of  making  a  loss? 


27 


A.  "  I  ciiiinot  state  that. 

Q.  "  You  would  say  tliaiik  you,  I  suppogc?     You   would 
not  mind  that  at  all,  would  you? 

A.  "I  do  not  know  what  I  mis,'ht  say  at  the  timo. 

Q.  "  You  think  it  would  he  no  loss  hecausc  it  is  a  chance 
that  you  mi<;ht  not  catch  tnackorel,  is  that  your  idea? 

A.  "  It  is  a  good  deal  of  chance  work. 

Q.  "  Mackerel  fishing  is  all  chance  work  ? 

A.  "  A  great  deal. 
10      Q.  "  And  there  are  thousands,  and  I  might  also  say  millions 
of  dollars  invested  in  the  macke  '>1  fishinc:,  is  there  not'' 

A.  "Yes. 

Q.  "And  it  is  all  invested  in  chance  work? 

A.  "A  great  deal  so,  a  good  many  vessels  go  out  and  do 
not  make  a  catch. 

Q.  "  Is  cod  fishing  just  ahout  the  same  ? 

A.  "  Of  course  they  have  to  take  chances,  some  of  them,  of 
course,  make  money,  and  some  of  them  do  not. 

Q.  "  Is  halibut  fishing  the  same  ? 
20      A.  "I  suppose  so. 

Q.  "  All  chance  ? 

A.  "Yes,  very  nuich  like  seal  fishing. 

Q.  "  And  just  about  to  the  same  extent  as  seal  fishine? 

A.  "  Yes,  sir.  * 

Q.  "  They  all  have  chances  and  they  catch  some  on  certain 
days,  do  they  not,  they  have  all  got  some  little  elements  of 
chance  to  catch  seals  and  fish. 

A.  "Yes,  sometimes  they  catch  them  and  sometimes  thev 
don't.  •' 

30      Q.  "  It  is  just  the  same  with  seals  as  it  is  with  mackerel  is 
it  not  ? 

A.  "  A  good  deal  that  way. 

Q.  "  And  there  is  no  more  chance  about  seals  than  there  is 
about  mackerel? 

A.  "Taking  the  average  it  is  about  the  same,  I  suppose,  a 
man  cannot  say,  when  he  goes  out  for  sealing,  or  mackerel 
fishing  that  he  is  going  to  make  a  catch,  he  cannot  rely  udou 
that.  "^     ^ 

Q.  "  He  cannot  be  certain  ? 
40      A,  "  No,  sir. 

Q.  "  And  it  is  the  same  way  with  seal  hunting,  you  say? 

A.  "  Yes,  sir,  I  believe  so.'" 

(R.  p.  420.) 

The  alleged  contingencies  in  seal  hunting  are  summarized  in 
the  United  States  Argument  (p.  208)  as  follows : — 

"The  smallness  of  the  vessels  employed  ;  the  extraordinary 
perils  of  a  voyage  to  and  cruise  in  Behring  Sea ;  the  experience 
andskill  of  the  master,  hunters  and  crew  ;  the  unreliability  of 
Indian  hunters  through  their  ignorance  and  superstition  ;  the 
50  frequent  inclemency  of  the  weather;  the  prevaleney  of  fogs 
and  rain ;  the  condition  of  the  animals  when  hunted,  and  the 
uncertainty  of  finding  seals." 

Even  if  this  statement  were  correct,  which  is  by  no  means 
admitted,  it  is  submitted  that  nearly  every  sea  fishery  is  carried 
on  under  similar  difHculties.  Take,  for  example,  the  cod  fish- 
eries as  they  are  prosecuted  on  the  banks  in  the  Atlantic ;  the 
persons  engaged  in  them  have  to  contend  with  the  most  severe 
weather;  the  conditions  as  to  storms  and  fogs  are  at  least  as 
disadvantageous  as  those  in  Behring  Sea ;  they  have  also  to  use 


28 

small  bouts  in  rough  luid  foggy  woathor;  they  have  to  emjiloy 
tiBhermoii  more  or  loss  expert.  Public  records  will  show  that 
the  casualties  in  those  tisherios  arc  much  greater  than  in  seal 
hunting. 

Again,  in  the  mackerel  fishery,  the  same  difficulties  exist  to 
a  greater  or  lessor  extent. 

The  same  may  be  auid  ot  the  hair  seal  iishery  and  of  the 
lobster  iishery,  which  are  i>rosecutod  to  a  great  extent  along 
the  coast  of  the  \orth  Atlantic  ;  instances  might  be  multiplied. 

The  argument  of  the  United  States  implies  that,  with  re- 10 
gard  to  any  one  of  these  fisheries,  should  the  person  who  pro- 
secutes them  be  intentionally  and  wilfully  prevented  from  car- 
rying on  tlie  same,  the  element  of  uncertainty  is  such  as  to 
debar  him  from  recovering  any  damages  except  the  mere 
value  of  the  property  seized  or  interfered  with. 

Whatever  may  be  the  opinions  of  witnesses  as  to  the  exis- 
tence of  elements  of  uncertainty,  the  result  of  years  of  experi- 
ence has  shown  that  peo[)le  properly  equipped  for  seal  hunting 
as  in  other  fisheries  arc  successful  when  not  molested  or  inter- 
fered with.  20 


The  argument  submitted  by  the  counsel  for  the  United 
States  on  the  ([Uestions  of  the  "  sealing  grounds  in  Bohring 
Sea"  and  "duration  of  the  sealing  season  in  Bchring  Sea", 
having  already  been  fully  dealt  with  by  the  counsel  for  Great 
Britain  in  their  original  argument,  it  is  not  deemed  necessary 
at  this  stage  to  make  any  further  reply. 


The  United  States'  Argument  on  "  Kstimated  Cratch  "  (p.  p. 
247-257)  is  open  to  various  remarks  and  comments  which  will 
be  more  properly  made  at  the  oral  argument. 


Great  Britain   rests  at  present  on  the  original  argument  30 
relating  to  value  of  seal  skins  as  well  as  to  the  value  of  vessels, 
and  to  the  personal  claims  of  masters  and  mates. 

It  should,  however,  be  noticed  that  the  attack  made  on  the 
credibility  of  the  witness  Marketich  is  altogether  unjustified 
by  the  record.  Tho  same  may  be  said  of  the  strictures  made 
by  the  United  States'  Counsel  on  several  other  witnesses. 


With  regard  to  that  portion  of  the  argument  of  the  United 
States  which  deals  with  each  claim  (pp.  337  to  496)  it  appears 
to  the  counsel  for  Great  Britain  that  a  general  outline  of  the 
contentions  of  both  parties  being  now  before  this  High  Com-  40 
mission,  it  will  for  the  present  be  unnecessary  to  go  into  any 
detailed  reply,  except  in  certain  jiarticular  instances  which  will 
now  be  dealt  with. 


S9 


"CAROLENA."— CASE  I. 

Touching  tho  contention  of  tho  United  Statos'  Counsel  that 
Andrew  J.  Bechtil,  a  nativo-born  citizen  of  tho  United  StateH, 
was  half-owner  of  tho  vessel ;  tho  ovidenco  shows  conclusively 
that  ho  was  before,  at  the  time  of  and  since  the  seizure  domi- 
ciled in  Victoria;  therefore,  the  question  of  his  interest  in  any 
ship  becomes  imiimterial.  It  is  further  contended,  however, 
that  in  point  of  fact  the  evidence  clearly  establisheH  that 
Bechtel's  intere^it  in  tho  "Ciirolena"  and  in  the  "rathfinder" 
10  was  sinii)ly  that  of  mortgagee. 


"BLACK  DIAMOND"  AND  "LILY." 

Claims  Nos.  15  and  16. 

It  is  contended  by  tho  counsel  for  the  United  States  that 
these  two  vessels  woro  the  property  of  Alexander  Frank,  an 
American  citizen,  and  that  Morris  Moss,  thi^  registered  owner, 
had  no  real  interest  therein.  Tho  evidence  on  this  point 
clearly  establishes  the  contrary  to  be  the  fact.  The  vessels 
were  seized  in  the  year  1889,  and  tho  evidence  shows  that 
they  became  the  property  of  Morris  Moss  on  the  10th  Novem- 
20  ber,  1888.     We  quote  from  R.,  p.  1993,  lino  16  :— 

Q.  "  You  are  Alexander  Frank  referred  to  in  the  evidence 
as  having  been  tho  partner  of  Jacob  Gutman  ? 

A.  "  I  do   not  know  what   evidence  you  refer  to.     I  have 
been  a  partner  of  Jacob  Gutman. 

Q.  "  In  Victoria  ? 

A.  "  At  Victoria. 

Q.  "  You  were  a  partner  with  Jacob  Gutman  before  his 
death  and  up  to  that  time  ? 

A.  "Yes,  sir. 
30      Q.  "  You   are  aware  that   the   "  Black  Diamond  "  and  the 
"Lily"  were  sold  to   Morris   Moss   on  the    lOth   November, 
1888? 

A.  "  I  do  not  know  the  date,  but  I  know  that  they  were 
sold. 

Q.  "  Approximately  that  ? 

A.  "  Somewhere  about  that  time. 

Q.  "  You  know  of  their  having  been  sold  to  Morris  Moss  ? 

A.  "Yes,  sir." 

*  *  *  ^  * 

40      Q.  "  Did  he  hold  them  for  you  ? 

A.  "He  did  not. 

Q.  "  Had   you  anything   to  do   with   either  of  these   two 
schooners  after  the  sale  to  Morris  Moss  ? 

A.  "  Nothing  whatever. 

Q.  "In  November,  1888,  were  you  a  resident  of  Victoria? 

A.  "  I  believe  I  was.     I  am  not  quite  positive  about  the 
time.     I  went  to  San  Francisco  either  in  the  latter  part  of 
1888  or  the  early  part  of  1889,  and  I  stayed  there  for  several 
months. 
50      Q-  "  You  had  a  business  here  in  Victoria? 

A.  "  I  was  liquidating  my  business  in  Victoria." 


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80 

Again  at  R.,  p.  2000,  line  66,  the  following  appears  : — 

Q.  "  When  you  were  asked  by  Mr.  Warren  as  to  whetlier 
you  bought  all  the  estate  of  Jacob  Gutman,  you  oommeitced 
to  make  an  explanation,  what  was  it  ? 

A.  "  Yes,  Mr.  Warren  would  not  let  me  explain.  When  I 
assumed  all  the  liabilities  I  had  to  assume  all  the  assets  of  the 
firm  to  save  myself  as  much  as  possible.  Arrangements  had 
I'cen  made  considerably  prior  to  that  date  for  the  sale  of  these 
Schooners  to  Morris  Moss — some  time  prior  to  that.  These 
negotiations  had  been  taking  place  before  that."  10 

A  persual  of  the  evidence  from  R.  p.  1998  to  p.  2001,  will 
prove  that  Frank,  with  the  object  of  paying  off  the  liabilities 
of  the  firm  of  Gutman  and  Frank  and  of  winding  up  the 
business  of  that  firm,  and  also  of  protecting  hii;.self  against 
their  liabilities,  made  arrangements  for  the  disposal  of  the 
assets  not  only  of  the  firm  but  also  the  private  assets  of  Gut- 
man, and  that  the  two  vessels  in  question  were  thuti  disposed 
of  to  Morris  Moss.  There  is  no  evidence  that  Frank,  after 
November,  1888,  had  anything  whatever  to  do  with  either  of 
the  vessels  in  question.  The  bill  of  sale  of  the  "  Black  20 
Diamond  "  to  Moss  appears  from  the  registry,  Appendix  "  B" 
(Exhibits)  p.  379,  and  that  for  the  "  Lily  "  appears  at  i».  198. 

With  regard  to  the  table  supposed  to  have  been  prepared 
by  Mr.  Milne,  and  referred  to  by  the  United  States'  counsel 
(p.  436) ;  this  was  Rhown  to  be  an  entire  mistake,  and  not  to 
have  formed  any  part  of  a  report  made  by  Mr.  Milne.  See 
R.  pp.  1909  to  1918. 


MV;' 
,  ■!,.; 

?■■■} 

1 

THE  "MINNIE." 
Claim  No.  17, 

At  page  441  the  following  appears : —  30 

"The  British  Government  sent  commissioners  to  Victoria  to 
pay  the  sealers  for  the  losses  incurred  by  reason  of  being  deprived 
of  hunting  in  the  sea  in  the  year  1891,  and  this  witness 
(Jacobson)  received  from  the  Government  of  Great  Britain  the 
sum  of  |8,000  for  damages  suffered  by  two  schooners. 

This  quotation  is  evidently  cited  with  the  object  of  making 
it  appear  that  $8,000  was  considered  by  the  British  Govern- 
ment as  a  sullicient  indemnification  for  the  loss  sustained  for 
two  schooners  for  not  being  allowed  to  fish  in  Behring  Sea. 

The  facts  with  regard  to  the  compensation  paid  by  Great  40 
Britain  in  1891  are  that  the  modus  invmdi  of  that  year  was 
promulgated  at  so  late  a  date  that  the  sealers  had  gone  to  sea 
before  its  existence  was  known  ;  the  British  Government,  there- 
fore, thought  proper  to  compenseiiate  those  sealers,  not  for  the 
loss  of  catch  in  Behring  Sea  (which  the  modus  rendered  ille- 
gal) but  for  the  actual  out  of  pocket  losucs  incurred  in  fitting 
out  for  a  business  which  was  legal  at  tho  time  they  prepared 
for  their  voyages,  and  it  is,  therefore,  quite  apparent  that  the 
amount  of  damage  then  awarded  in  respect  of  the  "Miiuiie" 
can  form  no  factor  in  measuring  the  damage  to  be  assessed  60 
hero. 


81 


THE  "  PATHFINDER." 

Claim  No.  21. 

The  position  is  taken  by  the  United  States'  counsel  (p.  4G5) 
that  the  vessel  "  having  been  forced  into  Noah  Bay  in  distress 
had  the  right  granted  her  by  the  law  of  nations  to  depart 
without  interference,  but  in  order  that  the  claimants  might  be 
in  a  position  to  advance  the  claim  of  privilege,  it  was  the  duty 
of  tho  officers  of  the  "  Pathfinder"  to  demand  the  privilege  of 
the  commander  of  the  cutter  "  Corwin  "  and  to  make  known 
10  to  him  that  the  vessel  had  entered  the  waters  of  the  United 
States  in  distress ;  that  this  privilege  was  not  claimed  and  no 
such  information  was  given  to  the  commanding  officer  of  the 
"  Corwin." 

The  atiswer  to  this  is  that  it  must  have  beeti  known  to  the 
officer  of  the  cutter  that  the  vessol  was  there  in  distress,  and 
no  question  was  raised  on  this  point  at  the  trial.  The  fact  that 
the  vessel  was  seized  for  a  specific  cause,  as  stated  by  the 
commanding  officer  of  the  "  Corwin  "  in  his  telegram  to  the 
Secretary  of  the  Treasury  at  Washington,  namely,  that  the 
2Q  " Pathfinder "  had  escaped  from  the  steamer  "Rush"  after 
aei/ure  in  Behring  Oca  the  previous  year,  is  quite  sufficient  to 
exclude  from  consideration  any  other  possible  cause  of  seizure, 
.md  to  o  away  with  any  imaginary  neglect  of  the  master  in 
not  telling  the  officer  of  tho  "  Corwin  "  that  he  was  in  Noah 
Bay  in  distress. 


FREDERICK  PETERS, 
F.  L.  BfilQUE, 
ERNEST  V.  BODWELL, 
CHARLES  HIBBERT  TUPPER. 


APPENDIX   No  I. 
JUDGMENT  IN  THE  "LANINFA"  CASE. 

UNITED  STATES   CIKCUIT  OOUItT  OF   APPEALS,   FOR  TUB   NINTH 

CIRCUIT. 
No.  24. 

The  Schooner  "  LaNinfa,"  Thomas  W  II.  Whitelaw, 

Claimuiit  and  Appellant. 

V8. 


I 


THE   UNITED   STATES  OP   AMERICA. 

APJ»EAL  FROM  THE  DISTRICT  COURT  OF  THE 
10  UNITED  STATES  FOR  THE  DISTRICT  OF  ALASKA. 

Page  and  Foils  for  the  Appellant ;  Chas.  A.Carter  lor  Appel- 
lees. 

Before  McKenna  and  Gilbert,  Circuit  Judges,  and  Ilawley, 
District  Judge. 

Hawley,  District  Judge : 

This  is  an  appeal  in  admiralty  from  a  decree  of  the  District 
Court  for  the  district  of  Alaska",  forfeiting  the  schooner  "La- 
Ninfa," upon  the  ground  that  she  had  been  unlawfully  engaged 
in  killing  seal  in  the  waters  of  Alaska  territory.  The  libel 
20  charges  that  the  vessel  and  her  crew  "  were  engaged  in  kill- 
ing fur  seals,  within  the  limits  of  Alaska  territory,  and  in  the 
waters  thereof,  in  violation  of  section  1956  of  the  Revised  Sta- 
tutes of  the  United  States,  and  of  other  Acts  of  Congress,  and 
of  the  proclamation  issued  by  the  President  thereunder." 

The  District  Court  found  that  "  On  the  6th  day  of  July,  1891, 
and  theretofore,  the  master  and  crew  of  defendant  vessel  were 
engaged  in  killing,  and  did  kill,  fur  seal  in  that  portion  of 
Behring  Sea  coded  by  Russia  to  the  United  States  by  treaty 
of  1867,  and  within  the  waters  of  Alaska,  in  violation  of  sec- 
30  tion  1956  of  the  Revised  Statutes  of  the  United  States,  and  of 
the  other  Acts  of  Congress  and  the  proclamation  of  the  Presi- 
dent of  the  United  States  thereunder,"  and  that  the  vessel  was 
an  American  vessel.  The  court  thereupon  decreed  a  forfei- 
ture of  the  vessel,  and  of  the  skins  on  board  of  her. 

It  appears  from  the  facts  shown  by  the  record  that  the 
schooner  was  fitted  out  at  San  Francisco,  California,  "  on  a 
whaling,  walrusing,  hunting  and  fishing  voyage  to  the  North 
Pacific  and  Arctic  oceans;  "  that  fur  sealing  was  among  the 
objects  contemplated  by  the  voyage  ;  that  she  sailed  from  San 
40  Francisco,  April  Ist,  1801  ;  that  on  the  3rd  day  of  July  she 
passed  into  Behring  Sea  ;  that  on  the  6th  day  of  July  she  put 
out  her  boats  for  the  first  time  in  that  sea,  and  brought  in 
fourteen  skins ;  that  on  the  next  day  the  United  States  ship 
"  Thetis  "  notified  the  captain  of  the  schooner  "  that  the  sea 
BS— 5 


1:;^ 


was  close*'  from  scaling."  Knsign  Dodd  of  the  "Thetis" 
boiii'dcd  t  le  schooner  on  July  7th,  about  thirty  miles  ott' 
St.  Paul''  Island,  under  orders  which  required  his  cutt'-r  "  to 
board  all  vcHst-ls  in  tiie  lichring  Sea,  and,  if  they  wore  engaged 
in  scaling,  to  givi-  thcmacojiy  of  the  President's  jiroclamation 
and  a  letter  of  warning  to  leave  at  once."  The  captain  of  the 
schooner  informed  the  otlicer  that  he  had  nineteen  skins  on 
board,  some  of  which  he  had  killed  in  Uehring  Sea.  The 
officer  testified  :  *'  As  near  as  I  can  remember,  I  asked  him  if 
he  had  killc<l  any  seal  in  the  sea,  and  if  he  had  been  warned  10 
before,  and  learning  that  he  had  not,  I  gave  him  a  copy  of  the 
warning,  asked  for  the  ship's  papers  and  endorst'd  them. 
*  *  *  C'aptain  Worth  said  he  was  fitted  out  for  whaling,  and 
asked  me  if  lie  cnuld  whale  in  the  Behring  Sea.  *  *  *  I 
ri'plied  tiiat  some  arrangement  might  be  made  to  that  eftect, 
but  that  I  had  no  authority  to  make  tiiem  ;  that  I  had  warned 
him  by  serving  these  papers,  and  that  if  he  remained  it  was  at 
his  own  risk  of  being  seized,"  The  captain  and  ofHcere  of  the 
schooner  testiiied  that  they  did  not  seal  after  tliey  got  this 
warning,  but  did  whale,  and  were  on  good  whaling  grounds  20 
at  the  time  of  the  seizure.  The  proclamation  of  the  President 
was  made  JuniM  5th,  1891,  pursuant  to  agreement  with  the 
British  Government,  known  as  the  modus  rirendi.  On  the 
14th  of  Jul}',  the  schooner  was  again  boarded  by  the  officer  of 
the  "  Corwin  "  who  seized  her  for  a  violation  of  the  proclama- 
tion, and  took  her  to  Sitka  for  eondenmation.  The  "  Corwin  " 
found  the  schooner  about  eight  milis  from  St.  Paul's  Island. 
She  had  on  board  nineteen  seal  skins,  of  which  nuniber  captain 
Worth  said  five  had  not  been  killed  in  the  sea.  There  is  no 
evidence  that  a  single  seal  had  been  killed  within  one  marine  30 
league  of  Alaska,  whether  of  the  maiidand  or  any  of  its 
islands.  The  evidence  does  show  that  the  killing  of  the  seals 
was  about  ten  miles  from  shore. 

From  these  facts  the  question  arises,  whether  Behring  Sea 
at  a  distance  of  more  than  one  league  from  tlie  American 
shore  is  Alaskan  territory,  or  in  the  waters  thereof,  or  within 
the  dominion  of  the  United  States  in  the  waters  of  Behring 
Sea. 

Section  105()  of  the  Revised  Statutes  reads  as  follows  : — 

"Sec.  1956.     No  person  shall  kill  any  otter,  mink,  marten  10 
or  fur  seal,  or  other  tur-bcaring  animal,  within   tlie  limits  of 
Alaska  territory,  or  in  the  waters  tiiereof;         *         *  * 

and   all    vessels,  their   tackle,  apparel,    furniture   and    cargo, 
found  engaged  in  violation  of  this  section  shall  be  forfeited ;"  itc. 

Section  3  of  the  Act  to  provide  for  the  protection  of  the 
salmon  fisheries  of  Alaska,  approved  March  2,  1889,  provides 
that  section  1956  "is  hereby  declared  to  include  and  apply  to 
all  the  dominion  of  the  United  States  in  the  waters  of  Behring 
Sea;  and  it  shall  be  the  duty  of  the  President,  at  a  timely 
season  in  each  year,  to  issue  his  proclamation  and  cause  the  50 
same  to  be  pul)lished  #  *  *  •  anting  all  persons 
against  entering  said  waters  for  the  [lurpose  of  violating  the 
provisions  of  said  section  ;"  kc. 

By  theso  provisions,  the  (piestion  as  to  what  the  boundaries 
were  over  which  the  United  States  had  dominion,  was  not 
intended  to  be  and  was  not  determined  by  the  amendatory 
Act.  The  question  was  left  open  for  future  consideration.  By 
reference  to  the  proceedings  in  Congress,  it  appears  that  the 
amendment  to  section  l!t60  was  brought  about  in  the  follow- 
ing manner :  A  bill  was  introduced  in  tht;  Senate,  and  passed,  60 
amending  section  1963  of  the  Revised  Statutes,  and,  to  provide 
for  l)etter  protection  of  the  fur  seal  and  salmon  fisheries  in 
Alaska,  and  had  reference  to  fishing  and  fisheries  oidy.  When 


8 

this  bill  came  to  tlio  IIouwo  ol'  Rcpresoiitntivcs,  an  iiniciuliiicnt 
was  propoHcd  and  adopted  "Tln»t  section  1!)56  ol'tlie  Kevisud 
Statutes  \vu8  intended  to  imiiide  and  apply,  and  Ib  hereby 
decreed  to  in<'liidc  and  apply  to  all  the  wate'rrtof  IJehring  Sea 
in  Alaska  cmbrncod  within  the  boundary  lines  nientionod  and 
described  in  the  treaty  with  Russia,  dated  March  30,  IHOT,  by 
which  the  territory  of  Alaska  was  ceded  to  the  United  States ; " 
&c.  The  bill,  as  thus  anieudod,  was  returned  to  tlie  Senate. 
The  committee  on  foreign  relations  reported  the  House  ameiid- 

10  ment  with  a  recommeiulation  tliat  it  be  disagreed  to,  Senator 
Morgan, of  tiie  committee,  said  :  "That  in  the  report  made  by 
the  committee  the  rights  of  the  Government  of  the  United 
States  were  not  considered,  and  not  intended  to  be  considered. 
VVe  only  arrive  at  the  conclusion  tiiat  the  (piestion  presented 
in  tiie  amendment  of  the  ll')U8e  is  of  such  a  serious  and  impor- 
tant character  that  the  foreign  relations  would  not  undertake, 
at  this  time,  to  pronounce  tluit  kind  of  judgment  upon  it 
which  is  due  to  the  magnitude  of  such  a  question.  *  * 
*         The  bill,  as  it  passed  the  Senate  originally,  should 

20  pass,  because  it  protects  tlie  salmon  and  other  fisheries  in 
Alaska,  about  which  there  is  no  dispute.  iJut  this  particular 
question  is  one  of  very  great  gravity  and  seriousness,  and  the 
committee  on  foreign  relations  or  at  least  a  majority  of  the 
entire  committee,  did  not  feel  warranted  in  undertaking  to 
consider  it  iit  this  time." 

Senator  Sherman,  of  the  same  committee,  said: — "The 
(piestion  proposed  by  the  Uouse  to  the  form  of  an  amendment 
was  a  grave  one,  and  had  no  relation  to  the  subject  matter  of 
the  bill  and  ought  not  to  be  connected  with  it, — had  no  con- 

30  nection  really  with  it, — and  ir.volved  serious  mattera  of  inter- 
national law,  perhaps,  and  of  public  policy,  and,  therefore,  it 
ought  to  be  considered  by  itself." 

The  amendment  made  by  the  House  was  disagreed  to.  A 
committee  of  conference  was  appointed.  The  result  was  that 
the  description  as  to  tbe  boundaries  in  the  House  amendment 
was  stricken  out,  and  tlie  words  "  hereby  declared  to  include 
and  apiily  to  all  the  dominions  of  the  United  States  in  the 
water's  of  liehring  Sea  "  inserted  in  lieu  thereof.  It  thus  ap- 
pears, as  is  manifest  by  the  Act  itself,  that  the  question  as  to 

40  the  boundaries  over  which  the  United  States  had  dominion 
was  not  intended  to  be,  and  was  not  determined  when  the  Act 
was  passed. 

The  Government  relies  solely  upon  the  provisions  of  the 
statute  to  sustain  the  decree  of  the  District  Court,  and  con- 
tends that  the  decision  of  the  Supreme  Court  in  re  Cooper, 
143,  U.S.,  474,  justifies  the  affirmance  of  the  decree.  That 
decision  does  not  reach  the  direct  point  here  in  controversy. 
The  court  there  held  that  the  question  was  a  [lolitical  one  in 
which  the  United  States  had  asserted  a  doctrine  in  opposition 

50  to  the  views  contended  for  by  the  petitioner ;  that  the  negotia- 
tions were  then  pending,  in  relation  to  the  particular  subject, 
but  the  court  declined  to  decide  whether  the  Government  was 
right  or  wrong  in  its  contention,  or  to  review  the  action  of  the 
political  departments  upon  the  question  under  review.  The 
opinion  shows  that  the  court  considered  it  a  grave  question. 
It  recites  much  of  the  important  history  relative  to  the  dis- 
puted question,  but  the  question  itself  was  not  decided.  The 
case  was  disposed  of  upon  other  grounds.  What  was  said 
concerning  the  disputed  questions  had  reference  to  the  condi- 

60  tions  then  existing.  The  conditions  now  existing  are  entirely 
dift'erent.  The  negotiations  then  pending  were  brought  about 
by  the  asserted  claim  of  the  United  States  to  proprietary  rights 
in  the  waters  of  iJchring  Sea,  and  in  the  fur-bearing  animals 
which  frequent  it  and  its  islands  which  \,ad  disputed  by  other 


) 

I'.  ■  ■' 

liv 

IJ   ! 


nations,  piirt'u'iilnrly  hy  Englaiul,  tlio  property  of  wlioso  ntili- 
JecN  had  IteiMi  from  tii.io  to  time  Hoi/o<l  l»y  tiie  riiittMl  SlatcM 
for  allogod  violiitioiiH  of  tlio  HtiitiitoH  in  (inoHtion,  and  tliesu 
rontrovorHioB  roHiilted  in  submitting  tiio  disputed  <|U08tion  to 
an  arbitration  (27  U.S.,  Stat.  !>»8).  Artiido  I  providoH  tluit : 
"The  questions  wliich  bave  arisen  between  the  (Jovcrnmunt 
of  the  United  States  and  tlie  (iovernnienf  of  Her  Itritunnic 
Majesty,  concerning  the  jurisdiotioiiid  rights  of  the  I'nitod 
States  in  the  waters  of  Hebring  Sea,  and  concerning  aho  the 
preservation  of  the  fur  seal  in,  or  hal>itually  resorting  to  the  10 
said  sea,  and  the  rights  of  the  eiti/ens  and  subjects  of  eitlier 
country,  as  regards  tiie  taking  of  fur  seal  in,  or  hai<itually  re- 
sorting to  the  said  waters,  shall  l>e  submitted  to  a  tril>unal 
of  arliitration."  The  live  points  submitted  to  the  arbitrators 
are  set  tbrth  in  Article  Vf.,  and  ondtling  the  second,  arc  as 
follows  :  — 

"  1.  What  exclusive  jurisdiction  in  tlie  sea  now  known  as 
the  Ik'bring  Sea,  and  what  exclusive  rights  in  the  seal  fisheries 
therein,  did  Russia  assert  and  exercise  ])riorand  up  to  the  time 
of  the  cession  of  Alaska  to  the  United  States?     *     *     *     #  20 

"  3.  Was  the  body  of  water  now  known  as  the  Hehring  Sea 
included  in  the  phrase  "  Pacific  Ocean  "  as  used  in  the  treaty 
of  1825  between  (Jrcat  Hritain  and  Ku.xsia  ;  and  what  rights, 
if  any,  in  the  Hehring  Sea  were  held  and  exclusively  exercised 
by  Russia  after  said  trciity  ? 

"  4.  Did  not  all  the  rights  of  Russia  as  to  Jurisdiction,  and 
as  to  the  seal  fisheries  in  Rt'bring  Sea  east  of  the  water  bouinl- 
ary  in  the  treaty  between  the  United  States  and  Russia  of  the 
80th  March,  1867,  pass  unimpaired  to  the  United  States  under 
that  treaty  ?  30 

"6.  Has  the  United  States  any  right  and,  if  so,  what  right 
of  protection  or  jiropiTty  in  the  fur  seals  frequenting  the 
islands  of  the  United  States  in  Behring  Sea,  when  such  seals 
are  found  outside  the  ordinar}-  three-mile  limit?  " 

The  decision  of  the  arbitrators  upon  these  points  was  as 
follows : — 

"1  *  *  *  Hy  the  Ukase  of  1821,  Russia  claimed  juris- 
diction in  the  sea  now  known  as  the  IJebringSea  to  the  extent 
of  100  Italian  miles  from  the  coasts  and  islands  belonging  to 
her;  but  in  the  course  of  the  negotiations  which  lead  to  the  40 
conclusion  of  the  treaties  of  1824  with  the  United  States,  and 
of  1825  with  (ireat  Hritain,  Russia  admitted  that  lier  jurisdic- 
tion in  the  said  sea  should  be  restricted  to  the  reach  of  camion 
shot  from  the  shore  ;  and  it  appears  that  from  that  time  up  to 
the  time  of  the  cession  of  Alaska  to  the  United  State"  lluiisia 
never  asserted,  in  fact,  or  exercised  any  exclusive  jurisdiction 
in  Behring's  Sea,  or  any  exclusive  rights  in  the  seal  vsheries 
therein,  beyond  the  ordinary  limit  or  territorial  waters.     *     * 

♦'2.     *         *         *         *         *         *         *         *         * 

"8.  As  to  the  third  of  the  said  five  points,  as  to  so  iiuch  50 
thereof  as  re(|uires  us  to  decide  whether  the  body  of  water  iiow 
known  as  Behring  Sea  was  included  in  the  phrase  "  I'acific 
Ocean,"  as  used  in  the  treaty  of  1825,  between  Great  Britain 
and  Russia,  we,  the  said  arbitrators,  do  unanimously  tb'cide  and 
determine  that  the  body  of  water  now  known  as  the  Behring 
Sea  was  included  in  the  phrase  "  Pacific  Ocean,"  as  used  in  the 
said  treaty.  And  as  to  so  much  of  said  third  point  as  re({uires 
us  to  decide  what  rights,  if  any,  in  the  Behring  Sea  were  lield 
and  exclusively  exercised  by  Russia  after  the  said  treaty  of 
1825,  we  *  *  *  a  majority  ut  said  arbitrators  do  decide  tiO 
and  determine  that  no  exclusive  lights  of  jurisdiction  in 
Behring  Sea,  and  no  exclusive  rights  as  to  the  seal  fisheries 
therein,  were  held  or  exercised  by  Russia  outside  of  the  ordin- 
ary territorial  waters,  utter  the  treaty  of  1825.     As  to  the 


tburtli  ot'Haid  iivo  pointu,  w»,  tho  nai*!  nrhitriitorn,  do  iiimiii- 
nioiinly  tlucido  iiiul  tlctoriniiio  tliiit  all  tlu>  riglitM  ot'liimrtiu  hh 
to  jnriHtlictidii  luul  iim  to  tlio  hohI  fiHliorioH  in  tlio  Iteliring  S«'a«*uHt 
ot'tlio  wutor  iMMinilurv,  in  tin- troutv  lit'twccn  tlui  Uiiitoil  Stut«'« 
iiixi  Itiirtrtiu  of  30th  Marcli,  18tt7,  ditl  \nw*  iiiiiinpaircd  to  tlio 
Uiiit«<l  HtatcH  iiiulor  lliu  Haiti  troaty.  Ah  ti)  tliu  tit'th  of  Haiti 
points  *  *  #  a  nuijority  ()(' tlicHuitl  arliitrafnrrt  tlo  lei'itlo 
ami  tictorniino  that  thf  ITnitod  Slalen  Iuih  not  any  rifjlit  t)f  pro- 
toftion  or  proporty  in  tho   fur  noals  frotjut'iitinff  thtt  inlanilH  of 

10  tht^  Unitotl  StutoH  in  lUdiriiij;  Sfa  wh-n  huoIi  nt-alH  arc  found 
oufnido  the  tmlinary  tlirt't'-niilo  limit."  (27  Amorifun  li«w 
Review,  76il.) 

My  the  XI V.  Article  t)fthe  treaty,  t)r  convention,  mihmit- 
tinjj  the  (piCHtioiiH  to  arltitration,  it  wan  proviilod  that:  "Tlie 
hifjh  eontraetinji;  parties  enfjajje  to  coiiHitlcr  the  result  t)f  the 
prt)eecdingrt  of  the  Trihunal  of  Arhitration  an  a  full,  perfect 
anti  tinal  settlement  of  all  the  (|uestionrt  reforreil  to  hy  the 
arhitrators."  In  Huhmiltint;  the  (piostions  to  the  high  court 
of  arhitration,  the  (lovornmeiit  agreetl  to  ho  hountl  hy  the 

20  decision  of  the  arl)itratt)rs,  nnti  has  since  passed  an  Act  to  give 
effect  to  the  awartl  rei.dered  hy  the  Trihumil  of  Arhitration 
(28  iJ.S.  .12).  The  awa'il  should,  theretore,  he  consitlered  as 
having  finally  settled  the  rights  of  the  United  States  in  the 
waters  of  Alaska  and  Mehring  Sea,  and  all  (pjestituis  concern- 
ing the  rights  of  its  own  citizens  and  suhjects  therein,  as  well 
as  of  the  citi/ens  and  nnhjects  of  other  couii(:ies. 

The  true  interpretation  of  Hcction  l!t5(i  antl  of  the  amend- 
ment therett), dc|)enil8  upon  the  dominion  t>f  the  I'niteil  States 
in  the  waters  of  Mehring  Sea  ;  such  iloniinion  therein  as  was 

80  "ceded  hy  Russia  to  the  United  States  hy  treaty  of  1867." 
This  question  has  hcen  sottloil  hy  the  award  of  the  arhitra'ors, 
and  this  settlement  must  he  accepted  "  as  final."  It  follows 
therefrom  that  the  wttrds  "in  the  waters  thereof"  as  used  in 
section  1956,  and  the  words  "dominion  of  the  Unitetl  States 
in  the  waters  t)f  Behring  Sea,"  in  the  amontlmeii'  tliereto, 
must  he  construcil  to  mean  the  waters  within  three  miles  from 
the  shores  of  Alaska.  On  coming  to  this  conclusion  this  court 
does  not  tlccitlo  the  question  atlversely  to  the  political  dejiart- 
ment  of  the  (loverument.     It  is  untlouhtetlly  true,  as  has  heen 

'»  tlecitletl  hy  the  Supreme  Court,  that  in  pentling  contrt)vorsieH 
dt)uhtful  qucstittns  which  are  undecitletl  must  he  met  hy  the 
political  department  t)f  thi^  (loverment.  "They  arc  hoyond 
the  sphere  of  judicial  cognizance,"  and  "  if  a  wrong  has  heen 
done,  the  iM)wer  of  reilress  is  with  Congress,  not  with  the  judi- 
ciary." (The  Cherokee  Tohacco,  11  Wall,  116-121).  Mut,  in 
the  present  case,  there  is  no  pending  question  left  undeter- 
mined for  the  political  departmojit  to  decitle.  It  luis  heen  set- 
tled. The  award  is  to  he  construed  as  a  treaty  which  hixs 
hecome  final.    A  treaty  when  accepted  antl  agreetl  to,  hoitomes 

50  the  supreme  law  of  the  land.  It  binds  courts  as  nmch  as  an 
Act  t>f  Congress.  In  Head  Money  Cases,  112  U.S.,  580-598, 
the  court  saiil :  "A  treaty  is  primarily  a  contract  between  in- 
tlependent  nations.  It  tlepenils  for  the  enforcement  of  its  pro- 
visions on  the  interest  and  honour  of  the  Governments  which 
are  parties  to  it.  *  *  *  A  treaty,  then,  is  the  law  of  the 
land,  as  an  Act  of  Congress  is  whenever  its  provisions  prescribe 
a  rule  hy  which  the  rights  of  the  private  citizen  or  subject 
may  he  determinetl.  Antl  when  such  rights  are  of  a  nature 
to  be  enforced  in  a  ctmrt  of  justice,  that  court  resorts  to  the 

60  treatv  for  a  rule  t)f  the  decision  ft)r  the  case  before  it  as  it 
would  to  a  statute."  Chew  Heung  vs.  U.S.,  112  U.S.,  536- 
54f-565.     United  States  rs.  Rauscher,  119  U.S.,  407-119. 

'{'he  duty  of  courts  is  to  construe  antl  give  effect  to  the  latest 
expression  of  the  sovereign  will,  hence  it  follows  that  what- 


I;  :'f. 


ovur  limy  liiivo  been  tlie  oontoiitioii  of  tho  (iovornmi'iit  at  the 
time  in  re  Coopor  was  deciiU'd,  it  lias  rcfi'dcd  tluTof'roin  rtiiiee 
tho  award  wan  reiidiTod,  Iiy  an  agreenicnl  to  ai'c-i(|it  tho  name 
"08  a  full,  coniiik'to  and  final  settloniont  of  ail  (|iiOHti(>nn 
referred  to  l)y  tho  arbitratorn,"  and  from  the  fiirtlier  fact  timt 
tlie  Ouvornniont  mnc-u  thu  rendition  oi  tho  award  Imtt  paH^od 
"  an  Act  to  give  etloct  to  tlie  awartl  rondorod  liy  the  Trihnnal 
of  Arbitration." 

It  is  8Uf;gC8tcd  in  tlio  brief  of  tiio  learned  counsel  for  the 
United  States  that  "It  may  be  tho  present  policy  of  tlio  10 
Government  to  nuikc  record  ovidonce  as  to  the  ciinsistency  of 
its  contontion  from  tho  bepnning  upon  tho  important  question 
of  its  rights  to  protect  its  property  and  seaHishoriort  *  *  * 
It  may  bo  that  it  is  the  policy  of  thistSovornment  to  punish  its 
own  citizens  and  vessels  and  not  the  citizens  and  vessels  of 
Kngland.  All  those  and  other  considerations  make  the  (lues- 
tion  one  essentially  political,  so  that  courts  would  at  least  hosi- 
tato  to  enter  any  lield  beyond  that  of  construing  tho  statutes 
under  which  tliis  case  is  presented."  There  is  nothing  in  tho 
award  wliich  denies  Jtirisdiction  t>f  tho  liiite*!  States  over  her  liO 
own  merchant  vessels  on  the  high  seas  at  any  place  not  witliin 
the  jurisdiction  of  any  other  sovereignty.  These  (piostions 
have  no  bearing  as  to  the  interpretation  to  bo  given  to  the 
statutes  under  review.  Those  Btatutc.^,  whatever  their  inter- 
pretation may  l>e,  nnist  be  applied  to  citizens  and  subjects  of 
all  nations,  and  were  not  intended  to  apply  oidy  to  citizens, 
subjects  and  vessels  of  America.  My  tho  terms  of  arbitra- 
tion "  tho  rights  of  the  citizens  and  subjects  of  either 
country  "  were  involved  in  the  decision  of  tho  arbitrator,  and 
it  necessarily  folK)ws  that  tlie  citizens  an<l  subjocts  of  the  80 
United  Stiites  have  tho  same  right  to  rely  upon  the  award  as 
to  their  rights,  under  the  statute,  as  the  citizens  and  subjects 
of  England.  There  are  no  provisions  in  the  Act  of  April  6, 
1894,  "to  give  eftect  to  tho  award  rendered  by  the  Tribunal  of 
Arbitration,"  which  indicate  any  policy  upon  the  part  of  this 
Government  to  enforce  any  rights  against  its  own  citizens, 
under  the  statute,  consistent  with  the  contentions  made,  "  from 
the  beginning  upov  tho  important  questions  of  its  right  to 
protect  its  property  and  seal  fisheries."  On  the  other  hand, 
the  entire  Act  clearly  shows  that  it  is  the  policy  of  tho  (tovorn-  40 
nient  not  to  make  any  such  distinction.  The  Act  was  passed 
enacting  certain  rules  relative  to  tho  control  of  its  own  subjects 
in  the  exercise  of  the  right  which,  under  the  award  of  tlie 
arbitrators,  tlie  two  countries  had  in  common  to  kill  seal  out 
aide  of  tho  three-mile  limit. 

Tho  decree  of  the  District  Court  is  reversed,  and  the  cause 
remanded,  with  instructions  to  tho  District  Court  to  dismiss 
the  libel. 

(Endorsed)  :  Opinion.     Filed  June  29,  1896. 

F.  D.  MONCKTON,  50 

Clerk. 


I,  FuANK  D.  MoNCKToN,  cloik  of  tho  United  .States  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit,  do  hereby  certify  the 
foregoing  to  bo  a  full,  true  and  correct  copy  of  an  opinion 
tiled  in  the  cause  entitled  :  The  schooner  "  LaNinfa,"  Thomas 
r.  H.  Whitelaw,  claimant  anil  appellant,  rs.  The  United  States 
of  America,  No.  24,  as  the  original  thereof  remains  of  record 
in  my  office. 

Attest  mv  hand  and  seal  of  said  (Circuit  Court  of  Appeals, 
this  16th  day  of  October,  A.D.  1896.  60 


(Sgfl). 


F.  D.  MONCKTON, 


Clerk. 


i 


I  li 


UXITKI)  STATKS  OnunTIT  COURT  OK  AITKAIA 
KOU  TIIK  NINTH  CIltCUIT. 
No.  182. 

Tub  Sciioonkk  "  Albxanuku,"  Ac,  Paoific  TRxniNtj  Company, 

Cluinmnt,  appellant, 

vs. 

Tub  Unitkd  Statks  ov  Amkrica. 

AIM'KAL  FROM  TIFK  DiSTItlOT  COURT  OK  TIIK 

UNITKD  STATKS,  KOR  TIIK  DISTRICT 

OK  ALASKA. 

10      AndroH  &.  Frank  fur  appollant ;  Clias.  A.  Carter  for  appollcf. 

Bt'foro  McKi-nna  &  Gilbort,  Circuit  jinlgCH,  and  Ilawloy, 
District  judjiro. 

IIawi,ry,  District  Judge  : 

This  is  an  appeal  from  a  dccreo  of  forfeiture  of  tlio  schooner 
"  Alexaiuler  "  for  killing  sea-otter  and  seal,  in  violation  of  the 
provisions  of  section  lOatj  of  the  Revised  Statutes,  as  amended 
March  2,  1889. 

The  fourth  finding  of  the  court  is  to  the  effect  that  the 
vessel,  her  master,  ofllcers  and  crew  did,  on  the  .'Uh  day  of 
20  -lune,  18it3,  kill  two  sea-otters  within  eleven  miles  of  the  shore 
of  Tugidak  Island.  The  fifth  tinding  is  to  the  eifect  that  the 
vessel,  her  master,  otlicers  and  crew,  on  the  13th  day  of  .June, 
1893,  did  kill  one  sea-otter,  and  on  the  SSth  of  June,  1893,  did 
kill  six  sea-otters,  and  one  furseal,  within  certain  degrees  of 
latituile  and  longitude,  therein  mentioned.  The  sixth  tinding 
is  that  n(mc  of  the  animals  mentioned  in  tinding  live"  were 
actually  killed  within  four  marine  leagues  of  any  shore  of 
Alaska  territory,  hut  they  were  all  killed  between  the  main- 
land of  the  Alaskan  peninsula  and  a  line  drawn  from  the 
30  southern  end  of  Tugidiik  Island  to  Chirikotf  Island,  thence  in 
the  tlirection  of  the  mainland  through  the  Semidi  group,  and 
on  to  touch  Sutkwik  Island  and  thence  to  the  mainland." 

It  thus  appears  that  all  the  animals  when  killed  by  the 
otlicers  and  crew  of  the  "  Alexander "  were  at  a  point  dis- 
tant more  than  three  miles  from  the  shore.  This  fact  brings 
the  case  within  the  |)rinciple8  announced  in  schooner  "  La 
Ninfa"  vs.  United  States,  just  decided.  Upon  the  authority 
of  that  case,  the  decree  of  the  District  Court  is  reversed,  and 
the  cause  remanded,  with  instructions  to  the  District  Court  to 
40  dismiss  the  bill. 

(Indorsed.)     Filed  29th  Juno,  1896. 

F.  D.  MONCKTON, 

ClerL 

T,  Frank  1).  Monckton,  clerk  of  the  United  Circuit  Court 
of  Appeals  for  the  Ninth  Circuit,  do  hereby  certify  the  fore- 
going to  be  a  full,  true  and  correct  copy  of  an  opinion  tiled  in 
the  cause  entitled  :  The  schooner  "  Alexander,"  Ac,  I'acitic 
Trading  Company,  Claimant,  Appelliint,  vs.  The  United  States 
of  America,  No.  182,  as  the  original  thereof  remains  of  record 
50  in  my  olHce. 

Attest  my  hand  anil  seal  of  said  Circuit  Court  of  Appeals 
this  16th  day  of  October,  A.D.  18!l6. 

(Sgd.)        F.  D.  MONCKTON, 

Clerk. 


APPENDIX   No.  2. 


PROTOCOL    XXIX,    XXX    AND     XXXI. 
AUBITRATION. 


OKNKVA 


•t. 


■il 


II 

It'  t'li. 

It  .'ii; 

I*  1  i.. 


I 


PROTOCOI,   XXIX. 

"  Record  o*'  till'  prot'Cfdings  of  tlie  Triliuiinl  of  Arbitrittinn 
nt  tlio  twenty -ninth  coiifori'iico  liclil  at  Oenovu,  in  Switzorlanil, 
on  the  211(1  of  Scptemher,  1872. 

"The  fonfereiice  was  held  with  closed  doorn,  jtursuaiit  to 
adjournment  nil  the  urhitrators  wore  present. 

"The  protocol  of  the  laat  conference  was  road  and  approved 
and  was  sijined  by  the  president  and  secretary  of  the  tribunal.  10 
Count  Sclopis  as  prcBiilent  of  the  tribunal,  acknowledged  the 
receipt,  by  the  arbitrator!*,  of  the  note  presented  by  the  agent 
of  ller  Britannic  Majesty  on  the  (juestion  of  interest,  and  of 
the  reply  to  the  same,  presented  by  the  agent  of  the  Unite*! 
States. 

"The  tribunal  then  proceeded  to  consider  that  question,  and 
a  majority  of  four  to  one  decided  that  interest  should  be  ad- 
mitted as  an  element  in  the  calculation  for  the  award  of  a  sum 
in  gross. 

"  Mr.  Staeniptli,  as  one  of  the  arbitrators,  presented  to  the  20 
tribunal  copies  of  the  synoptical  table  which  he  had  prepared 
as  a  proposition  for  the  determination  of  a  sum  in  gross; 

"  Estimate  of  Mr.  StaempHi  for  the  determination  of  a  sum 
in  gross : — 


Aftl'l'  till-  lllHt 

Aiiii-riraii  taMt*. 

H,M7,I«I0 

(i.7;i.-).iHHl 

1 

'I.INI't.HNI 

Hritinli 

ulliiwallrr. 

Mfiiii, 

Ainciiitt  of  fluiins    

Kx|»'ii'litiiri-  ill  pursuit 

I'rii>|)i(  till'  piulits  anil  iiittiiii|i 
tioii  of  \oyiigt' 

1« 

7,<>"4.IHHI 
mo.lNHI 
Stniik     oiil     M 
f*iich,    Imt    for 
wall's   .... 
20  |nr    c-iit    on 
tlie     vnliif     of 
vhiwIh 

9 

lll.iNiO 
Struck  out. 

r.W,IHH» 

4(Mi,iiim 

'I'otiil 





li,s<,i:i,iHM) 

40 


Koiunl  slllll. 


^I'J.INNI.INHI 


■ik 


'■  i 


I :  ,1 


"  Interest   from   the    1st   January,  1864,  to  the   15th  Sep- 
tember, 1872. 

1.   .\t  Ti  [KT  ri'iit  iliiriii),'  liclil    vi'arx  anil  iiVlit 

anil  oiii- half  liiolitll*.  h  .  .■"K'llHI.IHtll     S-J.HtHI.IMHt 

H  •  *"iO,0(MI  4a.\0<H) 


50 


?.'),2'.'.5,(K)0 

IT.'.Wi.OOO 

Kvf'iitimlly  ont^  yi'iirV  iiitcri«t  niori' 17,h2ri.C0O 

8 


9 


'J.   At  0  |iiT  riiil   iliiiiiii;  I'ltrlil   M'liiM  mill  liu'ht 

ami  iMIr  lllllf  llliillllia H        !<72(I,(NIII        >i.'i,7(;i».(i<i(» 

N^  UI.INHI  Mtl.lkHI 


lt,-.>7ll,INK) 


I'Miiliinllv  nitf  yi'nr'«  iiiliii -t  iiinri 


IN.'.KIII.IKNI 


•'t.    Al  7  |<r  iiiif  liniiiiit  i'j){|it   )i.|ii»  ami  <  IkIiI 

10  Jllhl  olM    lml(  tin    ...H         KSln.lHNI         .>Mi,;j(l.(MKI 

H.^  7ll,IMNI  .V.I.'i.lHHI 


7,:iiri,)iiMi 


Km  iitiiilly  iiiH'  yi'iir'»  iiiiiri"'!  iiiiiii'. 
Ilonml  >iiiii 


!<l!l,:il.'i.lNN) 


■JO.l.Vi.lKIO 

.(<:,ii,iNMi,iiiiii 


20  "Sir  Alt'XHiidcr  (Wkhiirn,  im  one  of  tlio  luliitnitorH,  then 
priH.'iitcd  till!  I'ollowiiiji  ini'inoraiKliiin  on  Mr.  Stuciiiplli'H  tali- 
iiiato: 

'•Mfiiioraiitliim  on  Mr.  Stucni|.lli'«  cHtimato. 

"The  H>tu!fH  in  Mr.  StaiMiiidli'H  iiapcr  require  hoihc  material 
corrpftioim,  an  to  wlii.li,  hr  ho(ui  a»  tlu-y  are  iiointod  out,  thore 
can  l><>  IK)  doubt. 

"Tlio  total  claim  h.v  the  United  States  of  !*l  1,437,000  will 
bo  found,  on  an  inspection  of  the  Uii.l  States  tables,  to  in- 
clude the  followiiiff  amounts  : 
;{0  "('|.)  All  the  double  claiins,  witlioiii  ixc^eption,  nnlwitb- 
stundinjr  tbo  dear  oxjiressiop  of  opinio.i  on  the  part  of  tlio  tri- 
bunal that  they  were  to  be  stnuk  .  it.  Tlioso  douMo  ciaiiiiB 
Hinount  to  $1,082,243. 

"(''■)  The  gross  freiffhts  of  the  merchiint  vessels,  amount- 
ing to  $1,007,1.53.  as  to  which  the  tribuhiil  has  decided  that 
at  the  utmost  only  h'.ilf,  that  is  to  .-ay,  $503,670,  Khould  bo 
allowed. 

"(c.)  The  now  claim  of  !«I,4')0,000,  adwmced  for  the  first 
time  on  the  19th  of  August  last,  a»  to  which  claim  Mr.  Slacmp- 
40  jli  declared  he  would  exclude  it  from  consideration.  It  la 
important  to  observe  that  thin  new  claim  comprises  over  and 
above  the  entirely  unsupported  claims  for  shares  of  vessels,  and 
for  additional  personal  ellcets,  the  claims  for  wages  extending 
very  long  and  varying  periods.  T/,e  Irihumtl  h,is  ,lcri,l,;l  t/mt 
<me  year's  wui/fs  in  respat  of  the  wlialers  ure  I,,  h,:  <iUi,weil  in 
lieu  ofprosii.ctiiYivtih.  Kor  this  (me  year's  wages,  Mr,  Staemp- 
lli  has  made  a  separate  allowance  of  $588,000  (an  allowance 
which  can  be  shown  to  be  excessive  by  at  least  $88,000),  and 
he  has,  therefore,  included  in  his  calculutioii  the  claim  for  wages 
50  twice  over. 

"It  is,  therefore,  cli'ar  that  Mr.  Staempfli  while  he  excludes 
some  of  the  items  of  claim  which  the  tribunal  has  disallowed, 
has  omitte<l  to  strike  out  the  other  iti'ms,  against  which  tho 
tribunal  has  pronounced  its  opinion ;  but  it  is  e(iiially  dear 
that  all  the  disallowed  items  must  be  excluded  beforea  com- 
parison can  be  fairly  or  usefully  made  between  the  United 
States  claim  and  the  British  estimate. 

"It  is  necessary,  therefore,  in  the  iirst  place, to  deduct  from 
the  United  States  claim  the  three  amounts  specified  in  parii- 
60  graplie  «,  h,  and  c,  respectively,  which  will  leave,  as  is  shown 
by  the  annexed  table,  a  properly  reduced  claim  of  $10,801,324, 
as  against  the  British  estimate  of  $7,405,764,  if  the  difference 
between  paper  and  gol.i  cuirency  l)e  for  the  present  purpose 
disregarded. 

"  It  must,  however,  be  carefuUv  borne  in  mind  that  the 
claim  of  $10,801,324  includes  the  following  items  : 

"1.  yl  cia/w  ()/■  $659,021  for  sauriil  mniinqs,  which  ought 
beyond  a  doubt  to  be  reduced  by  an  amount  equivalent  to  tho 
BS— 6 


10 


■  -iti- 


wear  and  tear  of  the  whalers  and  their  outfits,  and  the  con- 
sumption of  stores,  which  must  liave  taken  phice  before  tliese 
earnijigs  eoiiM  be  scoured,  and  for  wliich  a  deduction  should 
be  made,  inasmuch  as  the  full  original  values  of  the  vessels 
and  their  outfits  have  been  allowed. 

"2.  The  cliiim/i  in  irsprct  of  wctrluint  lesscls.  These  were 
VAlned  in  the  United  States  tables  at  more  than  §00  per  ton 
on  the  average,  although,  according  to  the  well-known  otKcial 
report  presented  to  I'ongress  in  l!^70,  the  cost  of  a  iirst  class 
perfectly  new  American  vessel,  made  ready  for  sea,  did  not  10 
average  that  amount  per  ton,  and  although,  according  to  the 
same  report,  the  average  value  of  Ameriean  vessels  engaged  in 
the  foreign  trade  was,  in  1801,  only  !!?41,  and  has  been  since 
only  $4b  per  ton. 

"  3.  The  cliiims  in  resprd  of  cargoes,  the  insurances,  commis- 
sions, and  profits  of  the  same,  which  profits  arc  sometimes 
claimed  at  the  rate  of  twenty,  tilty,  and  even  one  hundred  per 
cent.  Tlie  various  important  considerations  mentioned  at  page 
13  of  the  British  report,  and  the  fact  that  numerous  claims  for 
cargoes,  presented  for  the  first  time  in  April  last,  are  imsup-  20 
ported  by  any  vouchers,  bills  of  lading,  or  like  documents, 
undoubtedly  require  that  a  very  considerable  reduction  should 
be  made  under  this  head. 

4.  ^^  Several  lartje  claims  not  supported  by  any  affidavit  or 
declaration  on  oath. 

6.  "  Numerous  clearly  extravagant  claims,  specified  in  the 
British  reports,  such  as  the  claim  of  §7,000  by  a  harpooner  for 
personal  injuries,  the  claim,  by  a  passenger,  of  $10,000  for  loss 
of  office  as  consul,  all  the  numerous  claims  by  the  masters  of 
whalers  for  wages,  sometimes  at  the  rate  of  §15,000  or  §20,000  30 
a  year,  and  which  are,  of  course,  superseded  by  Mr. 
Staempfli's  allowance  of  §588,000  and  many  other  equally 
exorbitant  claims,  more  particularly  specified  in  the  British 
reports. 

"  From  these  considerations,  it  is  manifest  that  more  than 
ample  justice  will  be  done  to  the  United  States  by  taking  a 
mean  between  the  claim  of  §10,301,324  and  the  British 
estimate  of  §7, 164,764,  and  l)y  adding  thereto  the  alloicaneeof 
§588,000  in  lieu  of  prospective  catch. 

"  Mr.  Staempfli  has  also  added,  for  some  unknown  reason,  40 
25  per  cent  on  the  values  of  the  whalers,  iin  addition  which 
can  be  easily  shown  to  be  equivalent  to  altogether  allowing 
over  and  above  the  origiiuil  values  of  the  whalers  and  their 
outfits  a  percentage  exceeding  90  per  cent,  and  this  although 
the  question  of  interest  is  still  left  open  to  the  decision  of  the 
tribunal. 

"Admitting,  however,  this  extraordinary  addition  of  25  per 
cent,  and  the  excessive  estimate  of  the  wages,  it  is  shown  by  the 
annexed  table  that  if  Mr.Staempfli's  figures  be  properly  correct- 
ed the  estimate  would  scarcely  exceed  §10,000,000,  even  50 
without  any  allowance  being  made  for  the  great  difference 
between  the  values  of  the  jiaper  and  the  gold  currency. 

"Mr.  Staempdi'rt  calculations  of  interest  (supposing  interest 
to  be  allowed)  are  made  at  the  alternating  rates  of  5,  6  and  7 
per  cent,  for  the  period  of  eight  and  one-half  yoars,  from  the 
Ist  of  January   1864,  to  the  15th  September,  1872. 

"But  to  this  he  proposes  to  add  another  year's  interest  for 
the  period  of  delay  in  payment  after  the  date  of  the  award 
which  is  allowed  by  the  treaty. 

"The  tribunal  has  no  ;<ower,  under  the  treaty,  to  award  GO 
payment  of  a  gross  sum  with  interest.     The  amount  awarded 
is  to  be  i)aid  without  interest,  and  if  the  tribunal  were  to  add 
a  year's  interest  to  the  gross  amount  which  they  would  other- 
wise award,  in  respect  of  the  year  allowed  for  payment  by  the 


11 

treaty,  they  would  bo  doing  indirectly  what  they  have  no 
authority  to  do  directly,  and  would  (it  is  submitted)  be  con- 
travening the  true  intent  of  the  treaty,  and  charging  interest 
where  it  was  the  intention  of  the  treaty  that  interest  should 
not  be  paid. 

This  is  the  more  objectionable,  because  it  is  proposed  to 
charge  a  whole  year's  interest  at  either  6,  6  or  7  per  cent, 
whereas  the  IJritish  Government  has  the  option,  under  the 
treaty,  to  pay  the  sum  awarded  at  any  time  within  the  year 
10  allowed  for  that  purpose,  and  might  certainly  raise  the  money 
(if  that  operation  were  necessary)  at  a  considerably  lower  rate 
of  interest  than  5  per  cent. 

Table  in  reference  to  the  estimate  of  Mr.  Staempfli. 

Total  Uiiiti'd  Stiitis  ilaiiii  ill  till' last  iivisrd  tallies .<!14,4;)7,H3 

NecfHitaiy  ro(liietii)iis  to  Ik-  iiiailc  fniiii   tlir  alKHc  Miiiiinwed 
total : 

Doiilili' claiiiiH S!l,liSL',21H 

\c«  claims M:i(m"i(H) 

One  half  giims  frcJBlit   ri(«,")7(i 

20  3,3(ir.,Sl!» 


Makiiii?  the  total  ii-iliioid  claim 

As  against  till' liritisli  estimate  of 

The  im'aii  of  tlipsi' two  HiiiiiH  is 

Add  to  this  .Mr.  StaeiiiiiHi's  alloHanees  in  lien  of  piosiM'ctivc 
catch  ; 


l?llt,N<ll,324 
•*r,4li4.7[i4 
«l,l;t3,044 


Onv  year's  wa^es 

Tweiity-tive  per  cent  on  the  valnes  of  vessels. 


.•snss.iKMi 

IIHI.IHMI 


30 


!w«,noo 


•<1 0,1 21, (144 


"  The  tribunal  also  considered  the  question  of  the  award  of 
a  sum  in  gross. 

"  After  a  detailed  deliberation,  a  majority  of  the  tribunal  of 
four  to  one  decided,  under  tlie  VI  1th  article  of  the  treaty  of 
Washington,  to  award  in  gross  the  sum  of  §15,500,000,  to  be 
paid  in  gold  by  Great  Britain  to  the  United  States,  in  the  time 
and  manner  provided  by  the  said  article  of  tiie  treaty  of 
Washington. 
40  "  The  conference  then  adjourned  until  Friday,  the  6th 
instant,  at  half-past  12  o'clock,  to  be  held  with  closed  doors." 

FREDERICK  SCLOPIS, 
ALEXANDER  FAVROT,  Secretary. 


PROTOCOL  XXX. 


"Record  of  the  proceedings  of  the  tribunal  of  arbitration  at 
the  thirtieth  conference  held  at  Geneva,  in  Switzerland,  on  the 
Gth  of  September,  1 872. 

"  The  conference  was  held  with  closed  doors  pui-suant  to 

adjournmeiit.     All  the  arbitrators  were  present. 

60      "  Tiie  protocol  of  the  last  conference  was  read  and  aiiproved, 

and  was  signed  by  the  president  and  secretary  of  the  tribunal. 

"  The  tribunal  proceeded  to  consider  a  draught  of  their 

decision. 

"  At  the  request  of  the  tribunal,  Mr.  Adams  and  Sir 
Alexander  Cockburn  kindly  undertook  to  provide  for  the 
translation  into  English  of  the  French  text  of  this  act  of 
dijcision. 

"  The  coiiferen'jo  was  tlu'  adjourned  until  Monday,  the  9th 
instant,   at  hull-past  twelve  o'clock,  to  be  held  with  closed 
(50  doors. 

"  FREDERICK  SCLOPIS, 

"  ALEX.  FAVROT,  Secretary." 


12 


PROTOCOL  xxxr. 


IS 

111 


"  Record  of  the  proceedings  of  the  trihaiial  of  arhitratioii  at 
the  thirty-first  conference  held  at  Geneva,  in  Switzorhmd,  on 
the  9th  of  September,  1872. 

"  The  conference  was  held  with  closed  doors  pursuant  to 
adjournment.     All  the  arbitrators  were  present. 

"  The  protocol  of  the  last  conference  was  read  and  approved, 
and  was  signed  by  the  president  and  secretary  of  the  tribunal. 

"  Mr.  Adams  and  Sir  Alexander  Cockburn  presented  the 
English  translation  of  the  act  of  decision,  which  they  had  10 
kindly  undertaken  to  prepare. 

"  The  tribunal  definitely  adopted  the  act  of  decision,  which 
was  considered  at  the  last  conference,  and  decided  to  have  it 
printed. 

"  Viscount  d'ltajuba,  as  one  of  the  arbitrators,  made  the 
following  statement  : — 

"  '  Viscount  d'ltajuba,  while  signing  the  decision,  remarks, 
with  regard  to  the  recital  concerning  the  supply  of  coals,  that 
he  is  of  opinion  that  every  government  is  free  to  furnish  to 
the  belligerents  more  or  less  of  that  article.'  20 

"  The  tribunal  resolved  that  the  decision  should  be  signed 
at  the  next  conference,  which  was  to  be  held  with  open  doors, 
and  adjourned  until  Saturday,  the  Hth  instant,  at  halt-past  12 
o'clock. 

"  FREDERICK  SCLOPIS, 

"  ALEX.  FAVROT,  Secretary." 


,:.| 


!■■! 


i'i 


APPENDIX  No.  3. 


SUMMARY  OF  THE  FACTS  IN  THE  ARBITRATION 
CASE  OF  TIIK  "COSTA  RICA  PACKET"  AND 
TEXT  OF  THE  DECISION  OF  M.  MARTENS, 
THE  ARBITRATOR,  TAKEN  FROM  A  REPORT 
PRESENTED  TO  THE  IMPERIAL  PARLIAMENT 
IN  MAY,  1897. 

The  facts  of  the  case  as  set  forth  by  Great  Britain  were  aa 
follows : — 

10  The  "Costa  Rica  Packet  "  was  a  British  ship  registered  as 
such  at  the  port  of  Sydney,  New  South  Wales.  She  was  regis- 
tered as  owned  by  a  British  Company  named  "  Burns,  Philip 
&  Co."  (Limited),  of  Sydney,  New  South  Wales,  which,  in 
fact,  represented  a  number  of  British  subjects  in  the  colony. 
The  ship  was  specially  fitted  out  and  sailed  as  a  whaler  under 
the  British  flag  in  the  Moluccas  Seas,  on  a  series  of  voyages 
during  the  whaling  seasons  covered  by  the  years  1887  to 
1891  ;  on  each  voyage  she  was  commanded  by  Mr.  Carpenter, 
a  naturalized  British  subject,  who  had  special  knowledge  of 

20  the  Moluccas  Seas  and  the  currents  there  prevalent,  and  of  the 
habits  of  the  whales  and  where  they  could  be  found  at  parti- 
cular times;  this  fact  led  to  just  anticipations  of  the  profit  to 
bo  derived  from  any  whaling  cruise  by  a  vessel  of  which  he 
was  matter,  and  was  the  chief  inducement  to  undertake  the 
enterprifc<». 

The  whaling  season  in  the  seas  mentioned  was  alleged  to  be 
from  about  the  1st  November  to  the  10th  January. 

In   January,  1888,   the   "Costa  Rica   Packet,"   sighted  a 
derelict  prauw,  at  a  distance  of  about  32  miles  from  the  nearest 

30  land  ;  she  sent  a  boat  to  board  the  prauw,  on  board  of  which 
was  found  a  quantity  of  gin  and  brandy  of  small  value  partly 
damaged  by  sea  water,  and  a  small  quantity  of  kerosene  oil, 
which  was  lost.  The  spirits  were  taken  on  board,  but  some 
of  the  crew  of  the  "  Costa  Rica  Packet"  having  become  drunk 
by  indulging  in  the  use  of  the  spirits,  Mr.  Carpenter  ordered 
the  whole  to  be  thrown  overboard  which  was  done  with  some 
small  exceptions. 

In  the  year  1891,  the  "  Costa  Rica  Packet "  was  again  fitted 
out  for  a  whaling  cruise  by  her  former  owners  with  Mr.  Car- 

40  penter  in  command,  and  on  such  cruise,  on  the  1st  November, 
181*1,  was  anchored  at  Ternate,  in  the  Netherland  Indies, 
having  entered  that  port  to  procure  provisions  ;  whilst  there 
he  was  arrested  by  the  Netheriand  authorities ;  he  could  at 
first  get  no  information  as  to  the  cause  of  his  arrest,  beyond 
the  fact  that  the  orJer  for  it  had  come  from  Macassar,  and 
that  tha  oflicials  had  been  directed  to  arrest  him  and  send  him 
to  Macassar. 

Mr.  Carpenter,  however,  from  private  information,  believ- 
ed that  the  picking  up  of  the  derelict  prauw  in  1888,  was  the 

50  cause  of  his  arrest ;  he  therefore  determined  that  three  of  his 
officers  who  had  been  •  'i  the  "Costa  Rica  Packet"  at  that 
time  should  accompany  liiai  to  Macassar.  On  the  6th  Novem- 
ber, 1891,  Mr.  Carpenter,  who  had  been  in  gaol  since  his 
arrest,  was  placed  on  the  steamer  "Coon"  and  taken  to 
Macassar. 

13 


14 


|i.  i' 


il 


Before  leaving  Tornate,  Mr,  Carpenter  endeavoured  to 
procure  his  temporary  release  on  giving  security  for  his  return 
to  stand  his  trial ;  this  he  attempted  in  the  interest  of  the 
whaling  cruise,  a  continuance  of  which  would  be  impossible 
without  his  presence,  for  there  was  no  one  who  had  the  know- 
ledge requisite  to  successfully  direct  the  enterprise,  and  the 
consequence  of  Mr.  Carpenter's  arrest  and  absence  were  clearly 
brought  to  the  notice  of  the  Dutch  authorities. 

Mr.  Carpenter  arrived  at  Macassar  on  the  16th  November, 
and  was  placed  in  gaol  after  being  subjected  to  public  and  lo 
gross  indignities,  and  imprisoned  there,  being  released  on  the 
28th  November,  1891, 

The  charge  made  against  him  alleged  that  the  prauw  had 
been  taken  within  three  miles  of  the  Dutch  shore  ;  the  facts, 
however,  show  that  the  prauw  Mr.  Carpenter  had  obtained 
was  taken  much  farther  from  shore,  and  possibly  was  not  the 
same  one  mentioned  in  the  charge. 

In  the  nicmorandnm  presented  containing  the  demand  of 
Great  Britain  for  compensation,  the  following  assertion  is 
made : —  20 

"It  is  asserted  that  it  is  above  established  that  the  Nether- 
land  State  and  government,  acting  through  the  appropriate 
public  authorities  of  that  State  and  government,  by  the  pro- 
secution and  arrest  of  Mr.  Carpenter  for  acts  done  upon  the 
high  seas,  at  a  time  and  place  when  and  where  lit?  was  under 
the  exclusive  municipal  jurisdiction  of  the  British  State  and 
law,  wrongfully  asserted  and  exercised  a  jurisdiction  which  in 
fact  rested  on  no  valid  foundation,  and  wrongfully  applied  the 
municipal  law  of  the  Netherland  Indies  to  a  person  who  was 
in  no  way  bound  by  that  municipal  law,  and  to  acts  which  30 
that  law  was  powerless  to  characterize  or  govern,  and  wrong- 
ly usurped  a  jurisdiction  appertaining  to  Great  Britain  alone. 
Assuming  the  prosecution  to  have  only  proceeded  from  an 
honest  mistake,  and  not  from  other  causes,  that  can,  as  is  con- 
tended by  the  British  Government,  at  most  negative  matter  of 
aggravation,  and  can  only  be  pleaded  in  mitigation  of  the 
offence  committed,  but  cannot  alter  the  fact  of  an  usurpation 
of  Jiritish  sovereignty  having  taken  place,  or  the  fact  of  a  wrong 
having  been  done  to  Mr.  Carpenter,  and  through  him  to  Great 
Britain.  Under  the  circumstances  the  British  Government  is  40 
entitled  to  demand  and  receive  suitable  reparation,  and  it  is 
conceived  to  be  consonant  with  the  honour  and  dignity  of  any 
state  to  give  redress  for  a  wrong  such  as  the  above." 

And  further  on  at  page  16  of  the  correspondence  the  follow- 
ing appears : 

"  (/*)  Whether  the  proceedings  taken  were  oppressive. 

"  It  is  submitted  the  proceedings  were  oppressive.  The 
whole  of  the  considerations  put  forward  in  discussing  question 
{ii)  (namely  tlie  fjucstion  of  i'easonal)le  grounds  on  suspicion  of 
an  offence  against  the  law  of  the  Netherlands  having  been  50 
committed  within  the  territorial  waters  of  that  country)  which 
it  is  unnecessar)'  to  recapitulate  here,  support  this  conclusion. 
Moreover,  to  arrest  the  captain  of  a  whaler  during  the  whaling 
season — a  person  whose  presence  is  essential  to  the  continuance 
and  success  of  the  voyage,  and  whose  absence  must  injun^  not 
only  himself  but  all  interested  in  the  enterprise — fo""  the  pur- 
pose of  preventive  detention,  and  to  keep  him  imprisoned 
under  conditions  such  as  are  disclosed  in  tlie  evidence  taken 
by  the  Select  Committee  of  the  New  South  Wales  Legislative 
Council,  and  convey  him  1,000  miles  from  his  ship  upon  the  60 
slight  evidence  above  referred  to,  and  on  a  charge  which  a 
few  days'  investigation  was  snflicient  to  prove  the  incompe- 
tence of  tlie  Netherland  Indies  tril)nnal  to  entertain;  to  sub- 
ject a  person  of  Captain  Carpenter's  character  and  position  and 


15 

80  well  known  in  the  Dutch  Indies,  and  presumably,  accord- 
ing to  elementary  rules  of  justice  and  njood  faith,  innocent 
until  proved  guilty,  to  the  public  and  private  indignities 
suftered  by  him  which  are  set  out  in  the  evidence,  and  which 
It  IS  not  necessary  to  here  detail  or  to  characterize,  and  finally 
to  dismiss  him  from  gaol  without  apology  or  explanation  with 
a  Malay  word  signifying 'clear  out,' leaving  him  stranded  in 
Macassar,  1,000  miles  from  his  ship,  to  get '^ back  to  it  as  best 
he  may— to  act  thus  it  is  submittod  with  confidence  is  oppres- 
10  sive — oppressive  to  a  reprehensible  degree." 

"The  real  facts  of  the  case  proving  that  the  whole  matter 
arose  out  of  Mr.  Carpenter's  lawful  dealings  on  the  high  seas 
with  a  tew  cases  of  sea-damaged  spirits  of  little  value,  and  that 
he  was  guiltless  of  actual  wrong-doing,  and  that,  in  fact,  the 
loss  of  the  spirits  could  have  deprived  the  true  owner,  whoever 
he  might  be,  of  little,  bring  into  relief  the  injustice  and  oppres- 
sion of  the  proceedings.  Further,  the  actual  complainant, 
f  rieser,  -vasat  the  time  of  Mr.  Carpenter's  arrest  and  imprison- 
ment  undergoing  a  sentence  lor  arson  It  is  not  clear  whether 
20  this  was  not  also  the  case  when  the  warrant  of  arrest  was 
issued  m  January,  1891.  It  is  plain,  it  is  submitted,  that 
there  never  was  before  the  authorities  at  Macas.«ar  any  sub- 
stantial or  any  evidence  whatever  of  jurisdiction  to  entertain 
the  charge  made  in  the  warrant  of  the  26th  January,  1891  : 
the  complaint  was  made  four  months  after  the  occurrence 
complained  of;  the  proceedings  upon  the  complaint  were,  in 
the  first  instance,  never  prosecuted  or  were  dropped  ;  no  action 
were  taken  upon  the  charge  until  the  cause  of  complaint  was 
three  years  old  and  stale,  and  then  unnecessarily  drastic  pro- 
30  ceedings  (productive,  as  the  facts  proved,  and  as  might  have 
been  anticipated,  of  great  actual  injustice)  were  taken  upon 
the  chance  of  some  day  arresting  Mr.  Carpenter  on  Nether- 
land  Indian  Territory." 

"  Both  the  owners  and  Mr.  Carpenter  were  interested  in 
the  profits  of  the  voyage.  These  profits  were  looked  to  re- 
coup the  expenses  of  the  outfit  of  the  "  Costa  Rica  Packet." 
The  crew  received  no  wages,  but  were  on  a  'lay,'  that  is,  they 
received  only  rations,  and  in  return  for  their  services 
^yere  to  receive  a  share  of  the  profits  of  the  voyage  propor- 
tioned to  their  rating.  Tending  Captain  Carpenter's  arrest 
release,  and  return  to  Ternate,  the  crew  remained  with  the 
40  vessel,  and  their  time  was  consequently  wasted.  It  is  clear 
that,  under  the  circumstances,  both  the  owners  and  the  crew 
had  a  direct  and  contractual  interest  in  Captain  Carpenter's 
presence  on  the  vessel,  and  in  his  services  during  the  whaling 
cruise  in  progress  in  November,  1891." 

"  It  is  submitted  that  the  arrest  and  removal  of  Captain 
Carpenter,  whose  presence  and  activity  were  necessary  to  the 
adven;are,  under  the  above  circumstances  put  an  end  to  the 
adventure  and  to  the  possibility  of  profit  being  obtained  from 
the  adventure  of  the  owners,  master,  or  crew.  It  was  there- 
50  fore,  in  the  circumstances,  a  necessary  consequence  (construing 
the  word  'necessary  '  reasonably  and'  with  due  regard  to  the 
nature  of  the  case)  to  the  arrest,  and  the  preventive  detention 
of  Mr.  Carpenter,  that  the  owners  lost  their  outlay  and  hope 
ofprofitand  the  loss  on  the  sale  of  the  ship,  and  that  the 
crew  lost  their  hope  of  profit  from  the  adventure." 

"  The  damages  claimed  are  therefore  the  necessary  conse- 
quence of  the  wrongful  act  of  the  Netherland  officials  in  arrest- 
ing Mr.  Carpenter,  and  are  not  too  remote,  particularly  as  tlie 
Netherland  authorities  might  reasoiiiibly  have  expected,  and 
60  in  tiict  were  warned  (as  hereinbefore  shown)  that  their  conduct 
in  arresting  Captain  Carpenter  and  dealing  with  him  in  the 


16 


I 
P 

J'i'i 

p: 
1'*  II 


li  ::i 


■ill 


I? 


i    :'* 


manner  they  did  would  probably  occasion  Iosh  or  damage 
Bimilar  to  that  which  was  actually  sustained  and  in  resjjoet  of 
which  compensation  is  claimed." 

After  his  release  on  the  28th  November  Mr.  Carpenter 
returned  to  Sydney,  and  did  not  return  to  his  ship  until  April, 
1892,  when  it  apjicars  it  was  impossible  to  prosecute  the 
voyage,  and  the  ship  was  taken  to  Singapore  and  sold  at  a 
loss.  Mr.  Carpenter  showed  that  owing  to  a  dlfliculty  of 
obtaining  a  passage  earlier,  it  would  have  been  impossible  for 
him  to  have  returned  from  Macassar  to  Ternate  so  as  to  reach  lo 
the  latter  place  before  the  oth  January,  1802,  when  the  whaling 
season  would  be  almost  over ;  in  addition,  his  arrest  and 
imprisonment  had  caused  him  to  become  ill. 

The  Netborland  Government  denied  several  of  the  facts 
upon  which  the  British  claim  was  founded  and  especially  that 
the  sealing  season  was  contined  to  the  period  mentioned  or 
that  Mr.  Carpenter  was  subjected  to  any  indignity  or  ill-treat- 
ment. They  also  raised  the  question  that  the  arrest  was  for  a 
criminal  otfence  and  that  all  the  proceedings  had  been  carried 
on  in  strict  conformity  with  the  provisions  of  the  Netherland  20 
India  laws.     Their  contention  is  summarized  as  follows  : — 

"  1.  The  arrest  and  detention  of  Captain  Carjienter  on 
Netherland  Indian  territory  were  acts  carried  out  by  the  com- 
petent judicial  authorities,  by  virtue  of  a  judicial  decree, 
entirely  in  accordance  with  the  laws  in  force. 

"  2.  By  the  terms  of  these  laws,  the  arrest  of  an  accused 
person  may  be  proceeded  with  if  the  presumjitions  existing 
against  him  appear  to  the  judge  sufficient.  If  ex  post  facto. 
these  suspicions  are  not  considered  sufficiently  weighty  to 
warrant  the  accused  being  brought  to  trial,  the  law  accords  30 
him  no  indenniity  on  these  grounds. 

"  '6.  Foreigners  cannot  claim  an  exception  in  their  favour 
from  the  law  applied  to  subjects  of  the  State. 

"  4.  Even  could  there  be  any  question  of  instituting  an 
inquiry  in  regard  to  the  presumptions  which  led  to  the  arrest 
of  Carpenter,  it  would  be  established  beyond  any  doubt  that 
these  presumptions  were  sufficient  both  as  regards  the  question 
of  whether  the  acts  had  been  committed  and  was  a  punishable 
offence,  and  as  regards  the  question  of  the  competency  of  the 
Netherland  Indian  judge  in  the  matter.  40 

"  5.  With  respect  to  this  last  ["oint  it  is  not  certain  a  priori 
at  what  distance  from  the  Netherland  India  coast  in  sight  of 
which  the  vessel  was  the  pillage  of  the  prauw  took  place, 
whilst  if  it  had  been  admitted  that  it  had  not  happened  in 
territorial  waters  which  in  any  ease  extends  beyond  a  distance 
of  three  miles  from  the  coast  the  presumption  remained  that 
the  judge  was  i  ompetent  whether  on  tlie  ground  that  the 
goods  were  seized  on  board  a  Netherland  India  vessel  or  in 
case  it  were  admitted  that  the  intention  to  salve  the  goods  for 
the  benefit  of  the  owner  existed  from  the  outset  on  the  ground  SO 
that  the  apjiropriation  of  the  goods  hy  sale  or  barter  was 
effected  at  Batjan  in  Netherland  Indian  territory. 

"6.  Not  only  has  Carpenter's  eiuiijilaint  of  the  harshness 
and  want  of  consideration  with  which  lie  alleges  he  was  treat- 
ed remained  wholly  uneonfirmcd  Itut  on  the  contrary  he  was 
treated  in  a  humane  manner  which  is  far  from  common,  whilst 
had  not  tiio  judicial  authority  at  Macassar  a^jplied  in  a  very 
liberal  measure  the  principle  iti  ilithio,  pro  rcc,  he  would  with- 
out doubt  have  been  sent  before  a  court  for  trial,  found  guilty 
and  sentenced."  GO 

"7.  The  claim  for  an  indemnity  bolh  on  behalf  of  Carpen- 
ter, as  well  as  on  behalf  of  the  officers,  crew,  and  owners  of 
the  "  Costa  Rica  I'acket "  are  therefore  dc\-oid  of  all  fou»\da- 
tion  while  the  sums  claimed  arc  in  no  respect  warranted.'' 


wmmimit 


17 

Thf  t-aae  was  left  to  tli.'  arI>itrutioii  of  Mr.  Martens,  ap- 
pointfil  as  arbitrator  In-  tlir  Czar  of  Russia,  and  tlic  follow- 
ing is  liis  decision  in  full  : 

"  In  virtiU'  of  the  hiirli  duties  of  arliitrator  confcm-d  by  su- 
premo order  of  my  Aui-iist  Master,  His  Majesty  tlie  Emperor 
Nicliolas  II  of  All  the  Jiussias,  F.  do  Martens,  Privy  Council- 
lor,  IVrmaneiit  M(nd)er  of  tlie  Council  of  tbe  Russian  Ministry 
of  Foreign  Afliiirs,  and  Kmoritus  Professor,  in  accordance  with 
tbe  Conyention  of  tlio  ItJtb  May,  18'.'5,  concluded  between  the 
10  Government  of  Her  Majesty  tbe  Quein  of  Great  Mritain  and 
Ireland.  Empress  of  India,  and  tbe  (Jovirnment  of  Her  Majes- 
ty the  Queen  of  tbe  Xotlu'rlands,  on  the  subject  of  tbe  diffe- 
rence wbicb  bas  arisen  betwein  the  two  Governments  in  res- 
pect of  tbe  detention  of  Mr.  Carpenter,  captain  of  tbe  Austra- 
lian winder  tbe  "  (^osta  Rica  I'acket." 

"Having  duly  examined  and  nuitnrely  weiglied  the  docu- 
ments wbicb  have  been  jinxluced  on  eitber  side  with  regard 
to  tbe  indemnity  claimeil  by  tbe  (Jovenimont  of  Her  Uritannio 
Majesty  from  tbe  Government  ot  tbe  Xetberlands  on  behalf  of 
20  Captain  Carpenter,  and  tbe  ollicers,  crew,  and  owners  of  the 
vessel  'Costa  Ricu  Packet.' 

"Animated  by  a  sincere  desire  to  jusiity  the  great  honour 
which  lias  been  conferred  on  me  by  an  im'partialiind  scrupul- 
ous decision,  and  taking  into  account  tbe  principles  of  Inter- 
mitional  law  applicable  to  tbe  dispute  which  bas  arisen  be- 
tween the  two  bigb  conlendiiig  (governments  in  order  to  fix 
the  amount  of  the  indemnity  due  by  tbe  Government  of  the 
Netberlands  on  acount  of  tlu;  damages  sufiored  personally  by 
Cajptain  Carpenter,  of  tbe  'Costa  Ric'a  Packet,'  as  well  as  those 
30  that  nuiy  be  provi'd  to  bave  lie.u  sulKivd  by  tbe  officers,  crew, 
and  owners  of  tbe  aforesaid  vessel,  as  a  necessary  consequence 
of  tbe  precautionary  detention  of  Mr.  Carpenter. 

"I  pronounce  tbe  following  Award  of  Arbitration  :— 

"  ConsKlering  that  tbe  riglit  of  sovereignty  of  tbe  State  over 
territorml  waters  is  determined  by  the  range  ot  cannon,  mea- 
sureil  from  the  low-water  mark  ; 

"  That  on  the  bigb  seas  e\  en  merchant  vessels  constitute 
detached  portions  of  tbe  territory  of  tbe  State  whose  Hag  they 
bear,  an<l,  conse(iuently,  are  only  justiciable  by  their  re.^pective 
40  national  authorities  for  acts  committed  on  the  high  seas  ; 

"Tbat  tbe  State  bas  not  only  tbe  riirbt,  but  evui  the  duty 
of  iirotecting  and  delending  its  natiiinals  abroad  by  every 
means  authorized  by  international  law,  when  tbey  are  sub- 
jected to  arbitrary  proceedings  or  injuries  committed  to  their 
prejudice ; 

"That  tbe  sovereignty  of  the  State  and  the  independence  of 

tbe  judicial  or  ai'ministrative  authorities  coulil  not  prevail  to 

the  extent  of  arbitrarily  suppressing  tbe  legal  security,  which 

ought  to  bo  guaranteed  no  less  to  foreigners  than  to  natives  in 

50  the  territory  of  every  civilized  country; 

"Whereas  the  pranw,  floating  derelict  at  sea,  and  taken 
1.08808sion  of  in  danuary,  lft8.s,  by  Mr.  Carpenter,  the  cai-tain 
of  the  'CoBta  Kica  Packet,'  was  seized  by  him  incontrovertibly 
outside  the  territorial  waters  of  the  Dutcb  Indies  ; 

"  Whereas  the  appropriation  of  the  cargo  of  the  aforesaid 
prauw  by  Mr.  Carpenter  having  taken  place  on  tbe  high  seas, 
was  only  justiciable  by  English  Tribunals,  and  in  nowise  by 
Dutch  Tribuiiids  ;  "^ 

"Whereas  even  the  identity  of  the  above  mentioned  derelict 
60  with  the  lost  [prauw  belonging  to  Mr.  Frieser  is  in  nowise 
proved  ; 

"  Whereas  the  authorities  of  the  Netherland   Indies,  who 
had  arrested  Mr.  Carpenter,  in  November,  1891,  on  the  charge 
BS— 7 


18 


VIA- 


i^^t'M'' 


/'■■ 


of  his  having  committotl  the  act  in  1888  outflido  the  territorial 
waters  of  tne  Nethcrland  Indies,  abandoned  of  their  own 
accord  by  the  docision  of  the  Macassar  Council  of  Justice,  dated 
the  28th  Novemlier,  1891,  the  [irosecution  of  the  aecuscd,  and 
irrefutably  established  by  this  action  the  illegality  of  his  deten- 
tion, as  well  as  of  his  forced  transference  from  Ternate  to 
Macassar ; 

"  Whereas  all  the  papers  and  deeds  produced  go  to  prove 
the  absence  of  any  real  cause  for  arresting  Mr.  Carpenter,  and 
confirm  his  right  to  be  indemnified  for  the  losses  sustained  by  lo 
him  ; 

"  Whereas  the  treatment  to  which  Mr.  Carpenter  was  sub- 
jected to  in  prison  at  Macassar  appears  to  be  unjustifiable  in 
view  of  his  being  a  subject  of  a  civilized  state,  whose  detention 
was  only  a  precautionary  measure,  and  that,  con8e<iuently, 
this  treatment  entitles  him  to  a  fair  compensation  ; 

"  Whereas  the  unjuslijiablc  detention  of  Captnin  Carpenter 
caused  him  to  miss  the  best  part  of  the  whale-fishinij  season ; 

".Whereas,  on  the  other  hand,  Mr.  Carpenter,  on  being  set 
free,  was  in  a  position  to  have  returned  on  board  the  ship  £0 
"  '  Costa  Rica  Packet '  in  January,  1892,  at  the  latest,  and 
whereas  no  conclusive  j)roof  lias  been  produced  by  him  to 
show  that  he  was  obliged  to  leave  his  ship  until  Api-il,  1892, 
in  the  port  of  Ternate  without  a  master,  or,  still  less,  to  sell 
Ler  8  *  a  reduced  price  ; 

"  Whereas  the  owners  or  the  captain  of  the  ship  being  under 
an  obligation  as  a  precaution  against  the  occurrence  of  some 
accident  to  the  captain,  to  make  provision  for  his  being 
replaced,  the  mate  of  the  '  Costa  Rica  Packet '  ought  to  have 
been  lit  to  take  command  and  to  carry  on  the  whale-fishing  30 
industry  ; 

"  And  whereas,  thus,  the  losses  sustained  by  the  proprietors 
of  the  vessel '  Costa  Rica  Packet '  the  officers,  and  the  crew, 
in  consequence  of  the  detention  of  Mr.  Carpenter,  are  not 
entirely  the  necessary  consequence  of  this  precautionary 
detention. 

"  Whereas,  in  so  far  as  the  indemnity  to  be  paid  to  Captain 
Carpenter,  the  officers,  crew,  and  owners  of  the  vessel  '  Costa 
Rica  Packet '  is  concerned,  the  documents  produced,  and,  in 
particular,  the  expert  opinion  to  which  recourse  has  been  had  40 
at  Brussels,  do  not  furnish  the  necessary  elements  for  fixing 
the  amount,  and  whereas  a  sufficient  indemnity  will  have  been 
given  b}'  granting  the  sum  of  £^,150  to  Captain  Carpenter,  the 
sum  of  £1,600  to  the  officers  and  crew,  and  the  sum  of  £8,800 
o  the  owners  of  the  vessel  '  Costa  Rica  Packet.' 
'  For  these  reasons  : 

"  I  declare  the  Government  of  Her  Majesty  the  "^ueen  of 
the  Netherlands  responsible,  and  I,  consequently,  fix  the 
indemnity  to  be  paid,  at — 

"  The  sum  total  of  £8,150  to  Captain  Carpenter.  60 

"  The  sum  total  of  £1,600  to  the  officers  and  crew. 

"  The  sum  total  £3,800  to  the  owners  of  the  vessel  '  Costa 
Rica  Packet.' 

"  With  interest  on  all  these  charges  at  the  rate  of  5  per  cent 
per  annum,  from  the  2nd  November,  1891,  the  date  of  the 
illegal  arrest  of  Captain  Carpenter,  and  I  put  the  expenses  at 
the  total  sum  of  £250,  to  be  paid  by  the  Government  of  Her 
Majesty  the  Queen  of  the  Netherlands. 

"  Done  at  St.  Petersburgh,  in  duplicate,  the  13th  (25th) 
February.  1897.  60 


(Signed). 


MARTENS." 


60 


60 


9^ 


